EMPLOYMENT AGREEMENT
AGREEMENT made as of the 20th day of September , 1993 and between
Xxxxx X. Xxxxxx, an individual residing in Clearwater, Florida (hereinafter
referred to as "Executive") and EYE CARE INTERNATIONAL, INC., a Florida
corporation with offices in Largo, Florida (hereinafter called "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 Chief Executive
Officer ("CEO")for period of six (6) 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 only to the Company's Board of Directors.
During the Employment Period, Executive shall also serve as general legal
counsel to the Company and be paid a fee of $5,000 per month therefore.
Executive shall also serve on the Company's Board of Directors as its Chairman
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
under this Agreement, the Company agrees to provide Executive with a support
staff reasonably required by Executive so as to enable him to carry out such
duties. Notwithstanding the foregoing, Executive shall be permitted to maintain
his professional practice provided same does not require him to be absent from
the Company's offices, on the average, more than one day per week.
2. Compensation
(a) During the first year of the term of this Agreement, Executive
shall receive interim compensation of $150,000. This compensation may, at
Executive's election, be accrued, in whole or in part, if the Company has
insufficient funds to pay same. Notwithstanding the foregoing, upon completion
of a certain private placement offering, or initial public offering, (the
"offering") or one year from the date hereof, whichever shall first occur,
Executive's base compensation for all services to be rendered pursuant to this
Agreement, shall be at the rate of One-hundred and Seventy-five
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Thousand Dollars ($175,000) per annum payable in accordance with the general
payroll practices of the Company as from time to time in effect, less such
deductions or amounts as shall be required to be withheld by applicable law or
regulation. 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
fifteen (15) 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 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") in an amount equal to three (3) percent of the
Company's pre-tax profits from the preceding year (as determined by the
application of generally accepted accounting principles), up to the first
one-million dollars of such profits; plus an additional sum equal to four (4)
percent of the Company's pre-tax profits over one-million dollars and up to
two-million dollars of such profits; plus five (5) percent of all pre-tax
profits over two-million dollars up to three-million dollars; plus six (6)
percent of all pre-tax profits over three-million dollars up to four-million
dollars, and seven (7) percent of all pre-tax profits over four million
dollars. The special bonus shall be paid within thirty (30) days following
determination thereof, which determination shall be made as soon as
practicable.
(b) During the Employment Period, the Company agrees to obtain and pay
the premiums for life, travel and accident insurance (with a double indemnity
provision) in the amount of five (5) times Executive's then base compensation,
with the beneficiary to be designated by Executive. Executive and Company
further agree that the Company may obtain such other insurance on Executive as
the Company may determine, it being understood that Company shall be able to
designate the beneficiary of any such insurance. The Company also agrees to
obtain and maintain throughout the term of Executive's employment with the
Company, a directors' and officers' liability insurance policy as may be
mutually agreed upon between Executive and the Company provided same should be
a "no deductible" policy as to Executive and malpractice insurance.
(c) Executive shall be entitled to reasonable paid vacation time, sick
leave and time to attend professional meetings comparable to that offered the
executives in comparable positions.
(d) Executive shall be entitled (subject to the terms and conditions
of particular plans and programs) to all fringe benefits afforded to other
senior executives to the Company, including, but not by way of limitation,
bonuses and the right to participate in any pension, stock option, retirement,
major medical, group health, disability, accident and life insurance,
relocation reimbursement, and other employee benefit programs made generally
available, from time to time, by the Company.
(e) Company shall pay or reimburse Executive for reasonable expenses
incurred in the performance of his services under this Agreement during the
Employment Period, upon
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presentation of expense statements, vouchers or such other supporting
documentation as may reasonably be required.
3. Disability
(a) 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 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 designations shall be made by Executive and Company
each choosing a person, which person shall then mutually select a third person
(collectively called the "panel"). The panel's determination shall be made 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. 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 at paragraph 4(b) hereafter, or (ii) in the event
Executive terminates his employment by reason of the uncured breach of this
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
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
warrants, if any; and (v) the total compensation which would have been paid to
Executive through
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the longer of (i) the remaining term, if any, of the Employment Period, or (ii)
three (3) years compensation. 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", he "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 cause 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 then 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, (i) in the event Company does not
receive gross financing of debt or equity in the amount of not less than three
million dollars by December 15, 1994, or (ii) if, without justifiable cause, he
is not paid the compensation due him pursuant to the terms of this Agreement.
5. 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
"4" or subparagraphs "a", "b" and/or "d" of Article " 6", Executive's covenants
contained herein shall survive the termination or expiration of this Agreement.
6. TERMINATION OF AGREEMENT
This Agreement shall, in addition to other provisions affecting
termination, terminate on the occurrence of any of the following events:
(a) Cessation of the Company's business;
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(b) Dissolution of the Company; or
(c) The voluntary agreement of the parties hereto.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. MODIFICATION
This Agreement may only be amended, varied or modified by a written
document executed by the parties hereto.
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14. 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.
15. INDEMNIFICATION
In addition to any liability insurance to be provided 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 4. 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 Executive's employment by Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this; 20th day of September, 1993.
EYE CARE INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, President
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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