Exhibit 4.9
SEVERANCE COMPENSATION AGREEMENT
This SEVERANCE COMPENSATION AGREEMENT dated as of August 1, 2000 is entered
into between Unilens Vision Inc., Unilens Corp. USA, a corporation
(collectively, the "Company"), and Xxxxxx X. Xxxxxx (the "Executive").
Executive has determined that he will retire from the Company according to
the schedule set forth in paragragh 1 below and subject to the terms of this
Agreement. The Company's Board of Directors has determined, in light of the
importance of the Executive's continued services to the Company, it is
appropriate and in the best interests of the Company and its stockholders to
provide the terms for Executive's severance upon retirement from the Company.
Accordingly, the Company's Board of Directors has determined that it is
desirable to pay the Executive the severance compensation set forth below upon
the Executive's retirement from the Company under the circumstances described
below, in the event of his death or following a Change in Control of the Company
(as defined below).
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and the mutual
covenants contained in this Agreement, it is agreed between the Company and the
Executive as follows:
1. TERMS OF DATE OF RETIREMENT.
----------------------------
This Agreement shall commence on the date hereof and shall terminate on
June 30, 2001, or if extended, on December 31, 2001. Unless Company notifies
Executive in writing prior to April 15, 2001 that June 30, 2001 is the confirmed
date of retirement, then the retirement date will be automatically extended to
December 31, 2001. Executive's retainment under this Agreement shall be under
the same terms and conditions as those which presently apply to Executive,
including without limitation compensation, title, benefits, etc.
2. CHANGE IN CONTROL.
------------------
In the event there shall have been a Change in Control of the Company
before Executive retires from the Company or within six months thereafter,
Executive shall be entitled to compensation as set forth in paragraph 3 below.
For purposes of this Agreement, a "Change in Control" shall be deemed to have
occurred if (i) there shall be consummated (A) any consolidation or merger of
the Company in which the Company is not the continuing or surviving corporation
or pursuant to which shares of the Company's Common Stock would be converted
into cash, securities or other property, other than a merger of the Company in
which the holders of the Company's Common Stock immediately prior to the merger
have substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (B) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company; or (ii)
the stockholders of the Company shall approve any plan or proposal for the
liquidation or dissolution of the Company.
1
3. SEVERANCE COMPENSATION
----------------------
If Executive's retirement is effective on June 30, 2001, on December 31,
2001 or on such other date as the parties otherwise mutually agree in writing
(the "Retirement Date"), Executive shall receive severance compensation under
this Agreement in the amount equal to six (6) month's of Executive's annual
compensation (the "Severance Compensation"). This Severance Compensation shall
be in addition to any other regularly paid compensation to which Executive would
be entitled through to the Retirement Date. As used in this Agreement, all
references to "compensation" shall mean compensation calculated based upon
Executive's annual compensation rate in effect at the time of executing this
Agreement.
In the event Executive should die prior to June 30, 2001 and provided Executive
has not declined the Company's offer to extend the date of Executive's
retirement to Decmeber 31, 2001, Company, or its insurer, shall pay compensation
to Executive's estate in an amount equal to the balance of Executive's
compensation from the date of death through June 30, 2001, together with the
Severance Compensation, up to a total not to exceed an amount equal to twelve
(12) months of Executive's compensation. If the Retirement Date is extended
pursuant to the terms of Section 1 herein and Executive should die during the
period from July 1, 2001 to December 31, 2001, Company, or its insurer, shall
pay compensation to Executive's estate in an amount equal to the balance of
Executive's compensation from the date of death through December 31, 2001,
together with the Severance Compensation.
If the Company extends the date of Executive's retirement to December 31, 2001
on the same terms and conditions as presently in effect under Executive's
present contract, and Executive declines the Company's offer in writing, then
Executive's compensation shall end on June 30, 2001 and Executive shall have no
right to any compensation after June 30, 2001 or to any Severance Compensation.
If the Company has a Change of Control prior to June 30, 2001 and Executive
retires on the date of the Change of Control, Executive will be entitled to
compensation equal to the amount due to Executive for the period from the date
of the Change of Control to June 30, 2001 plus an additional payment equal to
twelve (12) months' compensation (such additional payment referred to herein as
the "Change of Control Compensation"). If the Retirement Date is extended
pursuant to the terms of Section 1 herein, a Change of Control occurs during the
period from July l, 2001 to December 31, 2001, and Executive retires on the date
of the Change of Control, Executive will be entitled to compensation equal to
the amount due to Executive for the period from the date of the Change of
Control to December 31, 2001 plus the Change of Control Compensation. If
Executive is entitled to the Change in Control Compensation, Executive will not
also be entitled to the Severance Compensation.
All amounts due to Executive for Severance Compensation or for Change of Control
Compensation hereunder shall be paid by Company to Executive (or to Executive's
estate, if applicable) in one lump sum on the Retirement Date or within ten (10)
days of Executive's death, as the case may be.
2
If the Company undergoes a Change of Control within six months after the
Retirement Date, Executive will be entitled to receive, in addition to the
Severance Compensation payable pursuant to this agreement, an additional payment
equal to the Severance Compensation within ten days of such Change in Control.
4. SUCCESSOR TO THE COMPANY.
-------------------------
(a) The Company will require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance, satisfactory to the Executive, to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession or assignment had
taken place.
(b) This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal and legal representatives, executors, administrators,
successors, heirs, and assigns. If the Executive should die, any amounts payable
to the Executive hereunder, shall be paid in accordance with the terms of this
Agreement to the Executive's to the Executive's estate or as directed by the
persoanl representative or executor of said estate.
5. NOTICE.
------
For purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given to the applicable receiving party when hand delivered, delivered
by overnight courier or mailed by United States registered mail, return receipt
requested, postage prepaid, as follows:
If to the Company:
-----------------
Unilens Corp. USA
Unilens Vision, Inc.
00000 00/xx/ Xx. X.
Xxxxx, Xxxxxxx 00000
Attention: Secretary
If to the Executive
-------------------
Xxxxxx X. Xxxxxx
00000 X.X. Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon actual receipt.
3
6. MISCELLANEOUS.
-------------
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in a writing signed
by the Executive and the Company. No waiver by either party hereto at any time
of any breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior to subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. This Agreement
shall be governed by, enforced and construed in accordance with the laws of
Florida. Time is of the essence in this Agreement.
7. VALIDITY.
--------
The invalidity or enforceability of any provisions of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
8. COUNTERPARTS.
-------------
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and same instrument.
9. AUTHORITY TO ENTER AGREEMENT.
----------------------------
Executive and Company hereby warrant to one another that they have full
right and authority to enter into this Agreement and that no additional
approvals or authorizations are required.
AGREED TO the date first set forth above.
Witnesses:
/s/ Xxxxxxx X. Xxxxxx Unilens Corp. USA
-------------------------------------
/s/ Xxxxx X. Xxxxxxx By: /s/ X. X. Xxxxxx Director
------------------------------------- ---------------------
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx Xxxxxx X.Xxxxxx
------------------------------------- ------------------------
/s/ Xxxxx X. Xxxxxxx Unilens Vision, Inc
-------------------------------------
/s/ Xxxxxxx X. Xxxxxx By: /s/ X. X. Xxxxxx President
------------------------------------- ---------------------
4
/s/ Unilens Vision, Inc
-------------------------------------
/s/ By: /s/ Xxxxxxx X. Xxxxxx Director
------------------------------------- -----------------------------
/s/ Unilens Vision, Inc
-------------------------------------
/s/ By: /s/ Xxx Xxxxxxxxx Director
------------------------------------- -----------------------------
5
FIRST AMENDMENT TO
SEVERANCE COMPENSATION AGREEMENT
This FIRST AMENDMENT TO SEVERANCE COMPENSATION AGREEMENT dated as of
October 23, 2001 (the "Amendment") is entered into between Unilens Vision, Inc.,
Unilens Corp. USA, a corporation (collectively, the "Company"), and Xxxxxx X.
Xxxxxx (the "Executive").
WHEREAS, a the parties previously entered into a Severance Comensation
Agreement (the "Agreement") dated as of August 1, 2000; and
WHEREAS, the parties desire to amend the Agreement extending the December
31, 2001 dates of the Agreement as set forth herein.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and the mutual
covenants contained in this Amendment, it is agreed between the Company and the
Executive to amend the Agreement as follows:
1. TERMS OF DATE OF RETIREMENT.
---------------------------
The Agreement shall remain in full force and effect but shall be amended as
of the date hereof and according to the terms hereof, and shall terminate on
December 31, 2002. Executive's retainment under the Agreement, as amended, shall
be under the same terms and conditions as those which applied to Executive as of
August 1, 2000, including without limitation compensation, title, benefits, etc.
2. SEVERANCE COMPENSATION
----------------------
If Executive's retirement is effective on December 31, 2002 or such other
date as the parties otherwise mutually agree in writing (the "Retirement Date"),
Executive shall receive severance compensation under the Agreement in the amount
equal to six (6) month's of Executive's annual compensation (such additional
payment shall be referred to herein as the "Severance Compensation"). The
Severance Compensation shall be in addition to any other regularly paid
compensation to which Executive would be entitled through the Retirement Date.
As used in the Agreement, as amended herein, all references to "compensation"
shall mean compensation calculated based upon Executive's annual compensation
rate in effect as of August 1, 2000.
If Executive dies during the period from the date of this Amendment through
and including December 31, 2002, Company, or its insurer, shall pay compensation
to Executive's estate in an amount equal to the balance of Executive's
compensation from the date of Executive's death through December 31, 2002,
together with the Severance Compensation, up to a total not to exceed an amount
equal to twelve (12) months of the Executives compensation.
If the Company has a Change of Control (as defined in the Agreement) during
the period from the date of this Amendment through and including December 31,
2002, and Executive
1
retires on the date of the Change of Control, Executive will be entitled to
compensation equal to the amount due to Executive for the period from the date
of the Change of Control through and including December 31, 2002, plus an
additional payment equal to twelve (12) months' of Executive's compensation
(such additional payment shall be referred to herein as the "Change of Control
Compensation").
All amounts due to Executive for Severance Compensation or Change of
Control Compensation hereunder shall be paid by Company to Executive (or to
Executive's estate, if applicable) in one lump sum on the Retirement Date or
within ten (10) days of Executive's death, as the case may be.
3. NOTICE.
------
For purposes of this Amendment, notices and all other communications
provided for in this Amendment shall be in writing and shall be deemed to have
been duly given to the applicable receiving party when hand delivered, delivered
by overnight courier or mailed by United States registered mail, return receipt
requested, postage prepaid, as follows:
If to the Company:
-----------------
Unilens Corp. USA
Unilens Vision, Inc.
10431 00/xx/ Xx. X.
Xxxxx. Xxxxxxx 00000
Attention: Secretary
If to the Executive
-------------------
Xxxxxx X. Xxxxxx
00000 X.X. Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon actual receipt.
4. MISCELLANEOUS.
-------------
No provisions of this Amendment may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in a writing signed
by the Executive and the Company. No waiver by either party hereto at any time
of any breach by the other party hereto of, or compliance with, any condition or
provision of this Amendment to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior to subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Amendment. This Amendment
shall be governed by, enforced and construed in accordance with the laws of
Florida. Time is of the essence in this Amendment.
2
5. VALIDITY.
--------
The invalidity or enforceability of any provisions of this Amendment shall
not affect the validity or enforceability of any other provision of this
Amendment, which shall remain in full force and effect.
6. COUNTERPARTS.
------------
This Amendment may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and same instrument.
7. AUTHORITY TO ENTER AMENDMENT.
----------------------------
Executive and Company hereby warrant to one another that they have full
right and authority to enter into this Amendment and that no additional
approvals or authorizations are required. Unilens Vision Inc., as parent
company to Unilens Corp. USA, is joining in the execution of this Amendment in
order to confirm its approval thereof. This Amendment shall become immediately
effective upon final execution by each person or entity signing this Amendment.
3
8. AGREEMENT TO REMAIN IN EFFECT.
-----------------------------
Except as expressly modified or amended herein, all other terms of the
Agreement shall remain in full force and effect. Immediately upon execution, the
terms of this Amendment shall be incorporated into the Agreement and shall
become a part thereof. To the extent the terms of this Amendment and the
Agreement differ, the terms of this Amendment shall prevail.
AGREED TO on the date first set forth above.
Witnesses:
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------- ------------------------------------
Xxxxxx X. Xxxxxx
President/Director
Unilens Corp., USA/Unilens
Vision Inc.
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
------------------------------------- ----------------------------------------
Xxxxxx X. Xxxxxx
/s/ C. Rlauton /s/ Xxxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Xxxxxxx Xxxxxx
Director, Unilens Vision Inc.
/s/ C. Rlauton /s/ Xxxx Xxxxxxx
------------------------------------- ----------------------------------------
Xxxx Xxxxxxx
Director, Unilens Vision Inc.
4
SECOND AMENDMENT TO
SEVERANCE COMPENSATION AGREEMENT
This SECOND AMENDMENT TO SEVERANCE COMPENSATION AGREEMENT dated as of the
28th day of May, 2002 (the "Second Amendment") is entered into between Unilens
Vision, Inc., Unilens Corp. USA, a corporation (collectively, the "Company"),
and Xxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the parties previously entered into a Severance Compensation
Agreement dated as of August 1, 2000;
WHEREAS, the parties previously amended the Severance Compensation
Agreement by First Amendment to Severance Agreement (the "First Amendment"); the
Severance Compensation Agreement and the First Amendment shall hereafter
collectively be known as the "Agreement"; and
WHEREAS, the parties desire to further amend the Agreement as set forth
herein.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and the mutual
covenants contained in this Second Amendment, it is agreed between the Company
and the Executive to amend the Agreement as follows:
1. TERMS OF DATE OF RETIREMENT.
----------------------------
The Agreement shall remain in full force and effect but shall be amended as
of the date hereof and according to the terms hereof, and shall terminate on
December 31, 2003. Executive's retainment under the Agreement shall be under the
same terms and conditions as those which applied to Executive as of August 1,
2000, including without limitation compensation, title, benefits, etc.
2. SEVERANCE COMPENSATION
----------------------
If Executive's retirement is effective on December 31, 2003 or such other
date as the parties otherwise mutually agree in writing (the "Retirement Date"),
Executive shall receive severance compensation under the Agreement in the amount
equal to six (6) month's of Executive's annual compensation (such additional
payment shall be referred to herein as the "Severance Compensation"). The
Severance Compensation shall be in addition to any other regularly paid
compensation to which Executive would be entitled through the Retirement Date.
As used in the Agreement, as amended herein, all references to "compensation"
shall mean compensation calculated based upon Executive's annual compensation
rate in effect as of August 1, 2000.
1
If Executive dies during the period from the date of this Second Amendment
through and including December 31, 2003, Company, or its insurer, shall pay
compensation to Executive's estate in an amount equal to the balance of
Executive's compensation from the date of Executive's death through December 31,
2003, together with the Severance Compensation up to a total not to exceed an
amount equal to twelve (12) months of the Executives Compensation.
If the Company has a Change of Control (as defined in the Agreement) during
the period from the date of this Second Amendment through and including December
31, 2003, and Executive retires on the date of the Change of Control, Executive
will be entitled to compensation equal to the amount due to Executive for the
period from the date of the Change of Control through and including December 31,
2003, plus an additional payment equal to twelve (12) months' of Executive's
compensation (such additional payment shall be referred to herein as the "Change
of Control Compensation").
All amounts due to Executive for Severance Compensation or Change of
Control Compensation hereunder shall be paid by Company to Executive (or to
Executive's estate, if applicable) in one lump sum on the Retirement Date or
within ten (10) days of Executive's death, as the case may be.
3. NOTICE.
------
For purposes of this Second Amendment, notices and all other communications
provided for in this Second Amendment shall be in writing and shall be deemed to
have been duly given to the applicable receiving party when hand delivered,
delivered by overnight courier or mailed by United States registered mail,
return receipt requested, postage prepaid, as follows:
If to the Company:
-----------------
Unilens Corp. USA
Unilens Vision, Inc.
00000 00/xx/ Xx. X.
Xxxxx, Xxxxxxx 00000
Attention: Secretary
If to the Executive
-------------------
Xxxxxx X. Xxxxxx
00000 X.X. Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon actual receipt.
2
4. MISCELLANEOUS.
-------------
No provisions of this Second Amendment may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in a
writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Second Amendment to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior to subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Second Amendment. This Second Amendment shall be governed by,
enforced and construed in accordance with the laws of Florida. Time is of the
essence in this Second Amendment.
5. VALIDITY.
--------
The invalidity or enforceability of any provisions of this Second Amendment
shall not affect the validity or enforceability of any other provision of this
Second Amendment, which shall remain in full force and effect.
6. COUNTERPARTS.
------------
This Second Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and same instrument.
7. AUTHORITY TO ENTER SECOND AMENDMENT.
-----------------------------------
Executive and Company hereby warrant to one another that they have full
right and authority to enter into this Second Amendment and that no additional
approvals or authorizations are required. Unilens Vision, Inc., as parent
company to Unilens Corp. USA, is joining in the execution of this Second
Amendment in order to confirm its approval thereof. This Second Amendment shall
become immediately effective upon final execution by each person or entity
signing this Second Amendment.
3
8. AGREEMENT TO REMAIN IN EFFECT.
-----------------------------
Except as expressly modified or amended herein, all other terms of the
Agreement shall remain in full force and effect. Immediately upon execution, the
terms of this Second Amendment shall be incorporated into the Agreement and
shall become a part thereof. To the extent the terms of this Second Amendment
and the Agreement differ, the terms of this Second Amendment shall prevail.
AGREED TO on the date first set forth above.
Witnesses:
By: /s/ Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx -------------------------------------
------------------------------------- Xxxxxx X. Xxxxxx, President/
Director Unilens Corp.USA/Unilens
Vision Inc.
By: /s/ Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx -------------------------------------
------------------------------------- Xxxxxx X. Xxxxxx, Executive
By: /s/ Xxxxxxx Xxxxxx
/s/ Xxxxxxx XxXxxx -------------------------------------
------------------------------------- Willliam Xxxxxx, Director Unilens
Vision Inc.
By: /s/ Xxxx Xxxxxxx
/s/ Xxxxxxx XxXxxx -------------------------------------
------------------------------------- Xxxx Xxxxxxx, Director Unilens
Vision Inc.
4
THIRD AMENDMENT TO
SEVERANCE COMPENSATION AGREEMENT
This THIRD AMENDMENT TO SEVERANCE COMPENSATION AGREEMENT dated as of the
25th day of August, 2003 (the "Third Amendment") is entered into between Unilens
Vision, Inc., Unilens Corp. USA, a corporation (collectively, the "Company"),
and Xxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the parties previously entered into a Severance Compensation
Agreement dated as of August 1, 2000;
WHEREAS, the parties previously amended the Severance Compensation
Agreement by First Amendment to Severence Compensation Agreement (the "First
Amendment") dated as of October 23, 2001;
WHEREAS, the parties previously amended the Severance Compensation
Agreement by Second Amendment to Severance Agreement (the "Second Amendment")
dated as of 28 May 2002; the Severance Compensation Agreement, the First
Amendment, and the Second Amendment shall hereafter collectively be known as the
"Agreement"; and
WHEREAS, the parties desire to further amend the Agreement as set forth
herein.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and the mutual
covenants contained in this Third Amendment, it is agreed between the Company
and the Executive to amend the Agreement as follows:
1. TERMS OF DATE OF RETIREMENT.
---------------------------
The Agreement shall remain in full force and effect but shall be amended as
of the date hereof and according to the terms hereof, and shall terminate on
December 31, 2004. Executive's retainment under the Agreement shall be under the
same terms and conditions as those which applied to Executive as of August 1,
2000, including without limitation compensation, title, benefits, etc.
2. SEVERANCE COMPENSATION
----------------------
If Executive's retirement is effective on December 31, 2004 or such other
date as the parties otherwise mutually agree in writing (the "Retirement Date"),
Executive shall receive severance compensation under the Agreement in the amount
equal to six (6) month's of Executive's annual compensation (such additional
payment shall be referred to herein as the "Severance Compensation"). The
Severance Compensation shall be in addition to any other regularly paid
compensation to which Executive would be entitled through the Retirement Date.
As used in the Agreement, as amended herein, all references to "compensation"
shall mean compensation calculated based upon Executive's annual compensation
rate in effect as of August 1, 2000.
If Executive dies during the period from the date of this Third Amendment
through and including December 31, 2004, the Company, or its insurer, shall pay
compensation to Executive's estate in an amount equal to the balance of
Executive's compensation from the date of Executive's death through December 31,
2004, together with the Severance Compensation up to a total not to exceed an
amount equal to twelve (12) months of the Executives Compensation.
If the Company has a Change of Control (as defined in the Agreement) during
the period from the date of this Third Amendment through and including December
31, 2004, and Executive retires on the date of the Change of Control, Executive
will be entitled to compensation equal to the amount due to Executive for the
period from the date of the Change of Control through and including December 31,
2004, plus an additional payment equal to twelve (12) months' of Executive's
compensation. (such additional payment shall be referred to herein as the
"Change of Control Compensation").
All amounts due to Executive for Severance Compensation or Change of
Control Compensation hereunder shall be paid by Company to Executive (or to
Executive's estate, if applicable) in one lump sum on the Retirement Date or
within ten (10) days of Executive's death, as the case may be.
3. NOTICE.
------
For purposes of this Third Amendment, notices and all other communications
provided for in this Third Amendment shall be in writing and shall be deemed to
have been duly given to the applicable receiving party when hand delivered,
delivered by overnight courier or mailed by United States registered mail,
return receipt requested, postage prepaid, as follows:
If to the Company:
-----------------
Unilens Corp. USA
Unilens Vision, Inc.
00000 00/xx/ Xx. X.
Xxxxx, Xxxxxxx 00000
Attention: Secretary
If to the Executive
-------------------
Xxxxxx X. Xxxxxx
00000 X.X. Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon actual receipt.
2
4. MISCELLANEOUS.
-------------
No provisions of this Third Amendment may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
the Executive and the Company. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with, any condition or
provision of this Third Amendment to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or
at any prior to subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Third
Amendment. This Third Amendment shall be governed by, enforced and construed in
accordance with the laws of Florida. Time is of the essence in this Third
Amendment.
5. VALIDITY.
--------
The invalidity or enforceability of any provisions of this Third Amendment
shall not affect the validity or enforceability of any other provision of this
Third Amendment, which shall remain in full force and effect.
6. COUNTERPARTS.
------------
This Third Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and same instrument.
7. AUTHORITY TO ENTER THIRD AMENDMENT.
----------------------------------
Executive and Company hereby warrant to one another that they have full
right and authority to enter into this Third Amendment and that no additional
approvals or authorizations are required. Unilens Vision, Inc., as parent
company to Unilens Corp. USA, is joining in the execution of this Third
Amendment in order to confirm its approval thereof. This Third Amendment shall
become immediately effective upon final execution by each person or entity
signing this Third Amendment.
3
8. AGREEMENT TO REMAIN IN EFFECT.
-----------------------------
Except as expressly modified or amended herein, all other terms of the
Agreement shall remain in full force and effect. Immediately upon execution, the
terms of this Third Amendment shall be incorporated into the Agreement and shall
become a part thereof. To the extent the terms of this Third Amendment and the
Agreement differ, the terms of this Third Amendment shall prevail.
AGREED TO on the date first set forth above.
Witnesses:
By: /s/ Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx -------------------------------------
------------------------------------- Xxxxxx X. Xxxxxx, President/
Director Unilens Corp. USA/Unilens
Vision Inc.
By: /s/ Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx -------------------------------------
------------------------------------- Xxxxxx X. Xxxxxx, Executive
By: /s/ Xxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx -------------------------------------
------------------------------------- Willliam Xxxxxx, Director Unilens
Vision Inc.
By: /s/ Xxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx -------------------------------------
------------------------------------- Xxxx Xxxxxxx, Director Unilens
Vision Inc.
4
FOURTH AMENDMENT TO
SEVERANCE COMPENSATION AGREEMENT
This FOURTH AMENDMENT TO SEVERANCE COMPENSATION AGREEMENT dated as of the
21st day of November, 2003 (the "Fourth Amendment") is entered into between
Unilens Vision, Inc., Unilens Corp. USA, a corporation (collectively, the
"Company"), and Xxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the parties previously entered into a Severance Compensation
Agreement dated as of August 1, 2000;
WHEREAS, the parties previously amended the Severance Compensation
Agreement by First Amendment to Severence Compensation Agreement (the "First
Amendment") dated as of October 23, 2001;
WHEREAS, the parties previously amended the Severance Compensation
Agreement by Second Amendment to Severence Compensation Agreement (the "Second
Amendment") dated as of May 28, 2002;
WHEREAS, the parties previously amended the Severance Compensation
Agreement by Third Amendment to Severance Agreement (the "Third Amendment")
dated as of 25 August 2003; the Severance Compensation Agreement, the First
Amendment, the Second Amendment, and the Third Amendment shall hereafter
collectively be known as the "Agreement"; and
WHEREAS, the parties desire to further amend the Agreement as set forth
herein.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and the mutual
covenants contained in this Fourth Amendment, it is agreed between the Company
and the Executive to amend the Agreement as follows:
1. TERMS OF DATE OF RETIREMENT.
----------------------------
The Agreement shall remain in full force and effect but shall be amended as
of the date hereof and according to the terms hereof, and shall terminate on
June 30, 2005. Executive's retainment under the Agreement shall be under the
same terms and conditions as those which applied to Executive as of August 25,
2003, including without limitation compensation, title, benefits, etc.
2. SEVERANCE COMPENSATION
----------------------
If Executive's retirement is effective on June 30, 2005 or such other date
as the parties otherwise mutually agree in writing (the "Retirement Date"),
Executive shall receive severance compensation under the Agreement in the amount
equal to twelve (12) month's of Executive's annual compensation (such additional
payment shall be referred to herein as the "Severance Compensation"). The
Severance Compensation shall be in addition to any other regularly paid
compensation to which Executive would be entitled through the Retirement Date.
As used in the Agreement, as amended herein, all references to "compensation"
shall mean compensation calculated based upon Executive's annual compensation
rate in effect as of the date of the Executive's retirement, the date of Change
of Control, or the date of death of the Executive, as the case may be.
If Executive dies during the period from the date of this Fourth Amendment
through and including June 30, 2005, the Company, or its insurer, shall pay
compensation to Executive's estate in an amount equal to the balance of
Executive's compensation from the date of Executive's death through June 30,
2005, together with the Severance Compensation up to a total not to exceed an
amount equal to eighteen (18) months of the Executives Compensation.
If the Company has a Change of Control (as defined in the Agreement) during
the period from the date of this Fourth Amendment through and including June 30,
2005, and Executive retires on the date of the Change of Control, Executive will
be entitled to compensation equal to the amount due to Executive for the period
from the date of the Change of Control through and including June 30, 2005, plus
an additional payment equal to eighteen (18) months' of Executive's
compensation. (such additional payment shall be referred to herein as the
"Change of Control Compensation").
All amounts due to Executive for Severance Compensation or Change of
Control Compensation hereunder shall be paid by Company to Executive (or to
Executive's estate, if applicable) in one lump sum on the Retirement Date or
within ten (10) days of Executive's death, as the case may be.
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3. NOTICE.
------
For purposes of this Fourth Amendment, notices and all other communications
provided for in this Fourth Amendment shall be in writing and shall be deemed to
have been duly given to the applicable receiving party when hand delivered,
delivered by overnight courier or mailed by United States registered mail,
return receipt requested, postage prepaid, as follows:
If to the Company:
-----------------
Unilens Corp. USA
Unilens Vision, Inc.
00000 00/xx/ Xx. X.
Xxxxx, Xxxxxxx 00000
Attention: Secretary
If to the Executive
-------------------
Xxxxxx X. Xxxxxx
00000 X.X. Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon actual receipt.
4. MISCELLANEOUS.
-------------
No provisions of this Fourth Amendment may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Fourth Amendment to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior to subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Fourth Amendment. This Fourth Amendment shall be governed by,
enforced and construed in accordance with the laws of Florida. Time is of the
essence in this Fourth Amendment.
5. VALIDITY.
--------
The invalidity or enforceability of any provisions of this Fourth Amendment
shall not affect the validity or enforceability of any other provision of this
Fourth Amendment, which shall remain in full force and effect.
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6. COUNTERPARTS.
------------
This Fourth Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and same instrument.
7. AUTHORITY TO ENTER THIRD AMENDMENT.
----------------------------------
Executive and Company hereby warrant to one another that they have full
right and authority to enter into this Fourth Amendment and that no additional
approvals or authorizations are required. Unilens Vision, Inc., as parent
company to Unilens Corp. USA, is joining in the execution of this Fourth
Amendment in order to confirm its approval thereof. This Fourth Amendment shall
become immediately effective upon final execution by each person or entity
signing this Fourth Amendment.
8. AGREEMENT TO REMAIN IN EFFECT.
-----------------------------
Except as expressly modified or amended herein, all other terms of the
Agreement shall remain in full force and effect. Immediately upon execution, the
terms of this Fourth Amendment shall be incorporated into the Agreement and
shall become a part thereof. To the extent the terms of this Fourth Amendment
and the Agreement differ, the terms of this Fourth Amendment shall prevail.
AGREED TO on the date first set forth above.
Witnesses:
By: /s/ Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx -------------------------------------
------------------------------------- Xxxxxx X. Xxxxxx, President/
Director Unilens Corp. USA/Unilens
Vision Inc.
By: /s/ Xxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxxx -------------------------------------
------------------------------------- Xxxxxx X. Xxxxxx, Executive
By: /s/ Xxxxxxx Xxxxxx
/s/ Xxxxxxx XxXxxx -------------------------------------
------------------------------------- Willliam Xxxxxx, Director Unilens
Vision Inc.
By: /s/ Xxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx -------------------------------------
------------------------------------- Xxxx Xxxxxxx, Director Unilens
Vision Inc.
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