EXHIBIT 10.8
I. EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
26th day of June, 1997 by and between OCEAN OPTIQUE DISTRIBUTORS, INC., a
Florida corporation ("Company"), and XXXXXXX XXXXXX ("Employee").
WITNESSETH:
WHEREAS, the Company is engaged in the business of importing, marketing
and distributing high quality ophthalmic (or eyeglass) frames and sunglasses
("Company's Business"); and
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company desires to employ Employee, and Employee desires to be employed by the
Company.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct
and are incorporated herein by this reference.
2. EMPLOYMENT. The Company hereby employs the Employee, and
the Employee hereby accepts employment, as the President of the
Company, upon the terms and conditions of this Agreement.
3. AUTHORITY AND POWER DURING EMPLOYMENT PERIOD. The duties of
the Employee shall be subject to the direction of the Company's Board of
Directors and the Employee shall perform all duties as may be mutually agreed
upon between the Employee and the Company's Board of Directors. The Employee
shall devote full attention and render exclusive, full-time services to the
Company and shall be an employee solely of the Company according to the terms of
this Agreement.
4. COMPENSATION. In exchange for the performance of Employee's
duties hereunder, the Company hereby agrees to pay Employee the following
Compensation:
(a) BASE SALARY. The Company shall pay Employee a
gross annual base salary ("Salary") of One Hundred Seventy-Five Thousand Dollars
($175,000). Salary shall be paid by the Company in accordance with the Company's
regular payroll practices, but not less often than once every two (2) weeks. The
Company's Board of
Directors shall review Employee's Salary annually and may increase it if the
Employee's performance justifies such an increase.
(b) DISCRETIONARY BONUS. In addition to the Salary
described in Section 4(a), Employee may be eligible to receive an annual bonus
solely and exclusively at the discretion of the Company's Board of Directors.
(c) WITHHOLDING. The Company shall deduct or withhold from all
Compensation payable hereunder all amounts required to be deducted or withheld
from Compensation pursuant to state or federal law.
(d) OTHER BENEFITS.
(i) FRINGE BENEFITS. Employee shall be
eligible to participate, on the same basis and subject to the same
qualifications as the other executive officers of the Company, in all other
employee benefits made available to executive officers of the Company, including
any pension, profit-sharing plan, life, health, medical, dental, hospitalization
or surgical insurance plan or policy, and any vacation or fringe benefit plans
or programs, whether now existing or hereafter established for participation of
executive officers.
(ii) EXPENSE REIMBURSEMENT. It is contemplated
that, in connection with his employment hereunder, Employee may incur business,
entertainment and travel expenses. The Company agrees to reimburse Employee in
full for all preapproved reasonable, ordinary and necessary business,
entertainment and other related expenses, including travel expenses, incurred or
expended by him incident to the performance of his duties hereunder, and
incurred or expended in accordance with the Company's policies with respect to
such expenses, upon submission by Employee to the Company of such vouchers or
expense statements satisfactorily evidencing such expenses as may be reasonably
required by the Company or its accountants.
(iii) VACATION. It is understood and agreed
by the parties hereto that during the term of Employee's employment hereunder he
shall be entitled to four (4) weeks of paid vacation each full calendar year, to
be taken at such times as the Company and Employee shall have mutually agreed to
beforehand. Unused vacation time in any calendar year shall not be carried over
to any subsequent calendar year, and Employee shall not be entitled to the
economic equivalent of any vacation time not used within a calendar year.
(iv) STOCK OPTIONS. If the Company's audited
annual income before income taxes for its fiscal year ended June 30, 1998, is at
least $3,000,000, then the Company shall grant Employee options to purchase
shares of the Company's common stock.
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Employee shall receive options to purchase 100,000 shares of the Company's
common stock for the first $3,000,000 of such income before income taxes and
additional options for such income before income taxes in excess of $3,000,000
at the rate of an option to purchase one share of the Company's common stock for
each additional $30 of such income before income taxes. If the such income
before income taxes is less than $3,000,000, the Company does not have to grant
Employee any options; however, the Company's Board of Directors otherwise
retains the right to grant options to Employee if the Board of Directors
determines such grant to be in the best interests of the Company and all of its
shareholders. Any such options granted to Employee shall be granted within 30
calendar days after the Company's independent auditors deliver audited financial
statements for such fiscal year to the Company. The options shall have an
exercise price per share equal to the fair market value of the Company's common
stock on the date of grant, shall vest and be exercisable upon grant, and shall
be exercisable for a period of five years from the date of grant.
5. TERM. This Agreement shall commence on the date hereof
and shall continue to be in effect for three (3) years from the
date of this Agreement ("Term"), unless terminated prior to the end
of the Term in accordance with Section 6 of this Agreement.
6. TERMINATION.
(a) BY COMPANY - FOR CAUSE. The Company shall have the right
to terminate the employment of Employee for cause immediately upon providing
written notice to Employee. For purposes of this Agreement, "cause" shall mean
the occurrence of any of the following, each of which shall be deemed a breach
of this Agreement:
(i) Employee's commission of any act of
corporate theft, misappropriation of funds, breach of duty as an officer of the
Company or other willful misconduct, act of dishonesty or intentional harm
against or to the Company;
(ii) Employee's conviction of or pleading nolo
contendere to any felony;
(iii) Employee's failure to perform his duties
hereunder on account of an incapacitating physical or mental condition for sixty
(60) or more work days in any six (6) month period ("Permanent Disability"). If
there is any dispute as to whether the Employee has suffered a permanent
disability, the Employee shall submit to an examination by a physician whose
selection shall be agreed upon by both the Employee and the Company, and whose
determination shall be binding; or
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(iv) Employee's failure to abide by the
Company's policies or procedures, including, but not limited to the Company's
policy against sexual harassment and discrimination.
In the event the Company elects to terminate Employee's employment
hereunder for cause, the Company shall give written notice to such effect to
Employee, which notice shall describe in reasonable detail the actions of
Employee constituting cause. Termination for cause pursuant to this provision
shall terminate any and all rights that Employee has pursuant to this Agreement,
including any options to purchase shares of the Company's common stock that may
have previously been granted to him.
In the event the Company elects to terminate Employee's employment
hereunder without cause, the Company shall give written notice to such effect to
Employee. On the effective date of termination, the Company shall pay Employee
severance in the amount of $175,000 in cash. In addition, the provisions of
Section 7(b) of this Agreement will no longer apply to Employee. Other than as
provided in this paragraph, on the effective date of termination, Employee shall
have no further rights pursuant to this Agreement.
This Agreement shall also terminate upon the Employee's death.
(b) BY EMPLOYEE - FOR CAUSE. Employee shall have the right to
terminate his employment under this Agreement for cause immediately upon sending
written notice to the Company in the event the Company fails, within thirty (30)
days of written notice from Employee, to cure any breach of its obligations
under this Agreement.
7. CONFIDENTIAL INFORMATION AND COMPETITION.
(a) CONFIDENTIAL INFORMATION. Employee hereby acknowledges
that he will or may be making use of, acquiring and adding to confidential
information of a special and unique nature and value affecting and relating to
the Company and its operations, including, but not limited to, the Company's
Business, the identity of the Company's customers and suppliers, the Company's
data base information, prices paid by the Company for inventory, its business
practices, marketing strategies, expansion plans, the Company's contracts,
business records and other records, the Company's trade secrets, inventions,
techniques used in the Company's Business, know-how and technologies, whether or
not patentable, and other similar information relating to the Company and the
Company's Business (all the foregoing regardless of whether same was known to
Employee prior to the date hereof or is or becomes known to third parties is
hereinafter referred to collectively as "Confidential Information"). Employee
further recognizes and acknowledges that all Confidential Information is the
exclusive property of the Company, is material and confidential, and greatly
affects the
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legitimate business interests, goodwill and effective and successful conduct of
the Business of the Company. Accordingly, Employee hereby covenants and agrees
that he will use the Confidential Information only for the benefit of the
Company and shall not at any time, directly or indirectly, either during the
Term of this Agreement or afterward, divulge, reveal or communicate any
Confidential Information to any person, firm, corporation or entity whatsoever,
or use any Confidential Information for his own benefit or for the benefit of
others.
(b) COMPETITION. Employee hereby acknowledges and agrees that
the Company would suffer irreparable injury if Employee competes with the
Company. As a material inducement to the Company to enter into this Agreement,
Employee hereby covenants and agrees that, unless the Company and its successors
and assigns shall cease to engage in the Company's Business, or unless
Employee's engagement hereunder is terminated by the Company in violation of
this Agreement or by Employee in accordance with Section 6(b) hereof, during the
period beginning on the date hereof and continuing until two years following the
date of the expiration or sooner termination of this Agreement, he shall not:
(i) directly or indirectly, operate, be
employed by, provide consulting services to, organize, maintain, establish,
manage, own, participate in, or in any manner whatsoever, individually or
through any corporation, firm or organization of which he shall be affiliated in
any manner whatsoever, have any interest in, whether as owner, operator,
partner, stockholder, director, trustee, officer, lender, employee, principal,
agent, consultant or otherwise, any other business or venture which engages in
the Company's Business or is otherwise in competition with the Company or any
assigns of the Company at the time of the expiration or sooner termination of
this Agreement, unless such activity shall have been previously agreed to in
writing by the Company and its successors and assigns;
(ii) directly or indirectly, divert
business from the Company or its successors or assigns, or solicit business
from, divert the business of, or attempt to convert to other methods of using
the same or similar services as are provided by the Company, any client or
account of the Company; or
(iii) directly or indirectly, solicit for
employment, employ or otherwise engage the services of, any employees or
consultants of the Company or its successors or assigns.
(c) INJUNCTION AND ATTORNEY'S FEES. In view of the
irreparable injury to the Company that would result from a breach or threatened
breach of Employee of the covenants or agreements under Sections 7 (a) or (b)
hereof, and because there is not an adequate remedy at law to protect the
Company from the ongoing
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breach of those covenants, Employee acknowledges that a permanent injunction is
an appropriate remedy for such a breach or threatened breach. These remedies
shall be in addition to and not in limitation of any other rights or remedies to
which the Company is or may be entitled at law or in equity under this
Agreement. With respect to any such litigation, the provisions of Section 12(m)
hereof shall apply, regardless of whether this Agreement had earlier expired or
been terminated.
(d) REASONABLENESS OF RESTRICTIONS. Employee has carefully
read and considered the provisions of Sections 7 (a), (b) and (c) hereof and,
having done so, agrees that the covenants set forth in those Sections are fair
and reasonable and are reasonably required to protect the legitimate business
interests of the Company. Employee agrees that the covenants set forth in
Sections 7 (a), (b) and (c) hereof do not unreasonably impair the ability of
Employee to conduct any unrelated business or to find gainful work in his field.
The parties hereto agree that if a court of competent jurisdiction holds any of
the covenants set forth in Sections 7 (a) or (b) unenforceable, the court shall
substitute an enforceable covenant that preserves, to the maximum lawful extent,
the scope, duration and all other aspects of the covenants deemed unenforceable,
and that the covenant substituted by the court shall be immediately enforceable
against Employee. The foregoing shall not be deemed to affect the right of the
parties hereto to appeal any decision by a court concerning this Agreement.
(e) SURVIVAL. This Section 7 shall survive the termination of
this Agreement and Employee's employment hereunder. Employee acknowledges and
agrees that the provisions of this Section 7 are specifically intended by both
the Company and Employee to benefit, and be enforceable by, not only the
Company, but also the Company's successors and assigns.
8. RIGHTS TO INVENTIONS, PATENTS AND COPYRIGHTS.
(a) Employee shall promptly disclose in writing to the
Company: all ideas, inventions, discoveries, devices, machines, apparatus,
methods, compositions, know-how, works, processes and improvements to any
thereof, whether or not patentable or copyrightable, that he may conceive, make,
develop, invent, reduce-to-practice, author or discover, whether solely or
jointly or commonly with others, during his employment with the Company, or
within one calendar year following the termination of his employment with the
Company, which relates to the business of the Company at the time of termination
(the items specified in this Section 8(a) are hereinafter collectively referred
to as "Inventions"). All Inventions are the sole and exclusive property of the
Company.
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(b) Employee shall promptly assign, transfer and set over unto
the Company, its successors and assigns, all of his rights, title and interest
in and to all Inventions, all applications for letters patent or copyrights,
foreign and domestic, which have or may be filed on such Inventions, all
divisionals, continuations, continuations-in-part, stream-line continuations,
substitutions, refiles, derivatives, and extensions thereof, all copyrights, all
letters patent of the United States and its territorial possessions and all
letters patent of foreign countries which may be granted therefor, and all
reexaminations and reissues of said letters patent, including the subject matter
of any and all claims which may be obtained in every such domestic and foreign
patent, the same to be held and enjoyed by the Company for its own and exclusive
use and advantage, and for the exclusive use and advantage of its successors,
assigns and other legal representatives, to the full end of the term or terms
for which said copyrights and letters patent of the United States, territories
and foreign countries are or may be granted, reexamined or reissued, as fully
and entirely as the same would have been held and enjoyed by Employee, if the
assignment had not been made.
(c) During and subsequent to the Term hereof, Employee
authorizes and requests the Commissioner of Patents to issue to the Company all
letters patent of the United States on all Inventions and on all divisionals,
continuations, continuations-in-part, stream-line continuations, substitutions,
refiles, derivatives, extensions, reexaminations and reissues thereof, and
hereby covenants that he has not executed and will not execute any agreement in
conflict therewith.
(d) Employee further covenants and agrees that he will, during
and subsequent to the Term hereof, without demanding any other consideration
therefor, at any time, upon request, execute, or cause to be executed, and
deliver any and all papers that may be necessary or desirable to perfect the
title to any Invention and to such letters patent and copyrights as may be
granted therefor, in the Company, its successors, assigns or other legal
representatives, and that if the Company, its successors, assigns, or other
legal representatives shall desire to file any divisional, continuation,
continuation-in-part, stream-line continuation, substitute, refile, extension,
reexamination, reissue, or derivative application, or to secure a reissue or
reexamination of such letters patent, or to file a disclaimer relating thereto,
Employee will upon request, sign, or cause to be signed, all papers, make or
cause to be made all rightful oaths, and do all lawful acts requisite for such
action.
(e) Employee does further covenant and agree, that he will, at
any time during and subsequent to the Term hereof, upon request, communicate to
the Company, its successors, assigns, or other legal representatives, such facts
relating to the Inventions, letters patent and copyrights or to the history
thereof, as may be
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known to him, and testify, at the Company's expense, as to the same in any
interference or other litigation or proceeding in which Employee is not a party
and does not have an interest, when requested to do so.
9. MISCELLANEOUS.
(a) NOTICES. All notices, demands or other communications
given hereunder shall be in writing and shall be deemed to have been duly given
only upon hand delivery thereof or upon the first business day after mailing by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
To Company: Ocean Optique Distributors, Inc.
00000 X.X. 000xx Xxx.
Xxxxx, Xxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxxx
To Employee: Xxxxxxx Xxxxxx
0 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or to such other address or such other person as any party shall designate, in
writing, to the other for such purposes and in the manner hereinabove set forth.
(b) ENTIRE AGREEMENT. This Agreement sets forth all the
promises, covenants, agreements, conditions and understandings between the
parties hereto with respect to the subject matter contained herein, and
supersedes all prior and contemporaneous agreements, understandings, inducements
or conditions with respect to said subject matter, expressed or implied, oral or
written, except as herein contained.
(c) BINDING EFFECT; NO ASSIGNMENT. This Agreement shall be
binding upon the parties hereto, their heirs, administrators, successors and
assigns. No party may assign or transfer its interests herein, or delegate its
duties hereunder, without the written consent of the other party. Any assignment
or delegation of duties in violation of this provision shall be null and void.
(d) AMENDMENT. The parties hereby irrevocably agree that no
attempted amendment, modification, termination, discharge or change
(collectively, "Amendment") of this Agreement shall be valid and effective,
unless the parties shall unanimously agree in writing to such Amendment.
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(e) NO WAIVER. No waiver of any provision of this Agreement
shall be effective unless it is in writing and signed by the party against whom
it is asserted, and any such written waiver shall only be applicable to the
specific instance to which it relates and shall not be deemed to be a continuing
or future waiver.
(f) GENDER AND USE OF SINGULAR AND PLURAL. All pronouns shall
be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the party or parties, or their personal representatives,
successors and assigns may require.
(g) COUNTERPARTS. This Agreement and any amendments may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together will constitute one and the same instrument.
(h) HEADINGS. The article and section headings contained
in this Agreement are inserted for convenience only and shall not affect in any
way the meaning or interpretation of the Agreement.
(i) GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Florida and any proceeding arising
between the parties in any manner pertaining or related to this Agreement shall,
to the extent permitted by law, be held in Dade County, Florida.
(j) FURTHER ASSURANCES. The parties hereto will execute
and deliver such further instruments and do such further acts and things as may
be reasonably required to carry out the intent and purposes of this Agreement.
(k) NO THIRD PARTY BENEFICIARY. This Agreement is made solely
and specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third-party beneficiary or otherwise.
(l) PROVISIONS SEVERABLE. This Agreement is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules, and regulations of the jurisdiction in which
the parties do business. If any provision of this Agreement, or the application
thereof to any person or circumstances shall, for any reason or to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
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(m) LITIGATION. If any party hereto is required to engage in
litigation against any other party hereto, either as plaintiff or as defendant,
in order to enforce or defend any rights under this Agreement, and such
litigation results in a final judgment in favor of such party ("Prevailing
Party"), then the party or parties against whom said final judgment is obtained
shall reimburse the Prevailing Party for all direct, indirect or incidental
expenses incurred, including, but not limited to, all attorneys' fees, court
costs and other expenses incurred throughout all negotiations, trials or appeals
undertaken in order to enforce the Prevailing Party's rights hereunder.
(n) REPRESENTATION BY EMPLOYEE. Employee hereby represents and
warrants that he is not a party to any agreement, contract or understanding,
whether of employment or otherwise, which would in any way restrict or prohibit
him from undertaking or performing employment with the Company in accordance
with the terms and conditions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
WITNESSES: COMPANY:
OCEAN OPTIQUE DISTRIBUTORS, INC.,
a Florida corporation
/s/ XXXXXX XXXXXX By:\S\XXXXXXX X. XXXXXX, PRESIDENT
------------------------- -------------------------------
/s/ XXXXXXX X. XXXXXXXXX Xxxxxxx X. Xxxxxx,
------------------------- President
EMPLOYEE:
/s/ XXXXXX XXXXXX \S\XXXXXXX XXXXXX
------------------------ -----------------
/s/ XXXXXXX X. XXXXXXXXX XXXXXXX XXXXXX
------------------------
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