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Exhibit 10.30
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is made and
entered into as of January 1, 1997 by and between NEW WEST EYEWORKS, INC., a
Delaware corporation (the "Employer"), and XXXXXX X. XXXXXXXX (the "Employee").
RECITALS:
A. Employer and Employee entered into an employment agreement on November
1, 1993 (the "Employment Agreement").
B. Employer and Employee desire to extend the term of the Employment
Agreement and make certain other amendments to the Employment Agreement.
NOW THEREFORE, for and in consideration of the mutual promises of the
parties and other good and valuable consideration, receipt and sufficiency of
which is hereby acknowledged, the parties mutually agree as follows:
1. Paragraph 1 of the Employment Agreement is deleted in its entirety and
is replaced as follows:
"1. EMPLOYMENT. Employer hereby employs Employee and Employee agrees
to be employed by Employer until December 31, 1999. Such period, together
with the period of any extension or renewal, upon the mutual agreement of
Employer and Employee, of such employment is referred to as the 'Employment
Period.'"
2. Paragraph 8 of the Employment Agreement is deleted in its entirety and
is replaced as follows:
"8. TERMINATION.
(a) Employer may terminate Employee's employment hereunder at any
time for cause, which shall be deemed to include the following:
(i) Employee's engaging in fraud, misappropriation of
funds, embezzlement, or like conduct committed against
Employer;
(ii) Employee's conviction of a felony; or
(iii) Employee's material violation of any provision of this
Agreement, provided Employee does not cure such breach
within a reasonable time after Employer notifies him
of such breach.
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(b) Employer may not terminate Employee's employment hereunder
other than as provided for in Section 8(a) above.
(c) Employee may terminate his employment hereunder at any time
after there has been a "Change in Control." For purposes of this
Agreement, a "Change in Control" shall mean the occurrence of any of
the following:
(i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities and Exchange Act of 1934
(the "Exchange Act"), an "Acquiring Person") becomes
the "beneficial owner" (as such term is defined in Rule
13d-3 promulgated under the Exchange Act, a "Beneficial
Owner"), directly or indirectly, of securities of
Employer representing 20% or more of the combined
voting power of Employer's then outstanding securities
(the "Outstanding Securities"), other than a person
that is a Beneficial Owner of 5% or more of the
Outstanding Securities on the date of this Agreement;
(ii) an Acquiring Person becomes the Beneficial Owner,
directly or indirectly, of 10% or more of the
Outstanding Securities and, during the two-year period
commencing at the time such Acquiring Person becomes
the Beneficial Owner of such securities, individuals
who at the beginning of such period constitute the
Board of Directors of Employer cease for any reason to
constitute at least a majority thereof;
(iii) Employer's stockholders approve an agreement to merge
or consolidate Employer with another corporation (other
than a corporation 50% or more of which is controlled
by, or is under common control with, Employer) and,
during the period commencing six months before such
approval and ending two years after such approval,
individuals who at the beginning of such period
constitute the Board of Directors of Employer cease for
any reason to constitute at least a majority thereof;
(iv) during any two-year period, individuals who at the date
on which the period commences constitute a majority of
the Board of Directors of Employer cease to constitute
a majority thereof as a result of one or more contested
elections for positions on the Board; or
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(v) a majority of the Board of Directors of Employer
determines in its sole and absolute discretion that
there has been a change in control of Employer.
However, a Change in Control shall not occur by reason of any
transaction in which Employee, or a group of individuals or entities
including Employee, participates as an Acquiring Person in the events
described in clauses (i) or (ii) of this Section 8(c) or owns,
directly or indirectly, a majority of a corporation described in
clause (iii) of this Section 8(c). For purposes of this Agreement, a
Change in Control shall be deemed to occur on the first day that all
of the conditions constituting the Change in Control shall have
occurred.
(d) If Employer or Employee terminates the employment of Employee
pursuant to Section 8, Employer shall not be obligated to make any
further payments to Employee under this Agreement (including, without
limitation, severance benefits), except for amounts of any earned and
unpaid Base Wages, and any bonuses earned, if applicable; provided,
however, Employer shall have the right to set off such sums against
any losses it incurs as a result of the conduct of Employee which
precipitated the termination of his employment by Employer.
(e) In the event that Employee's employment with Employer is
terminated by Employer or by Employee, the parties agree that the
provisions of Sections 9, 10, 11, 12, 13, 14, 17, 18, 21, 24 and 25
hereof shall survive such termination and continue in full force and
effect."
3. The following is hereby added to the end of Paragraph 9(c):
"; provided, however, that the restrictions of this Section 9(c)
shall not be applicable to employees of Employer employed in
Employer's Cleveland, Ohio office."
4. Except as provided in this Amendment, the Employment Agreement,
including Exhibit "A" to the Employment Agreement, remains in full force and
effect and is reaffirmed by the parties.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
"EMPLOYER"
NEW WEST EYEWORKS, INC
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx,
President and Chief Executive Officer
"EMPLOYEE"
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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