Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 15th day of June, 2004, by and between
Xxxxx Xxxxxx, an individual (hereinafter referred to as "Executive") and EYE
CARE INTERNATIONAL, INC., a Delaware corporation with offices in Tampa, Florida
(hereinafter sometimes called "ECI" and/or the "Company"). The term "Company"
shall be deemed to include Eye Care International, Inc. and all of its
subsidiaries (66% control or more) now existing or hereafter acquired.
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 and its subsidiaries 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
Executive Vice President/Chief Financial Officer for a period of three (3)
years, commencing August 1, 2004 (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.
(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 including one (1) assistant and technology support.
2. Compensation
(a) During the first year of the term of this Agreement,
Executive shall receive a base compensation of $170,000. Executive's
compensation shall be payable in accordance with the general payroll practices
of the Company as are 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, as defined herein, commencing June 16, 2005
(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 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, plus such additional amount as may be viewed by the Board as
meritorious. 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
one-quarter (1/4) 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 one-half (1/2) percent of the Company's pre-tax profits
over one-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 maintain a directors' and officers' liability insurance policy, which
includes Executive in such applicable position as he may hold
(c) Executive shall be entitled to reasonable paid
vacation time (not less than two (2) weeks per annum, but in all events,
consistent with the vacation time allotted the Company's other senior executive
officers), 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 of 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 and accident 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 presentation of expense statements,
vouchers or such other supporting documentation as may reasonably be required.
(f) Executive shall, as a sign-on bonus, receive (i) a
$10,000 bonus payable as follows: (a) $5,000 on or before December 1, 2004, and
(b) $5,000 on or before June 16, 2005; (ii) 25,000 shares of the Company's Class
A common stock (the "Shares") on or about August 1, 2004, which Shares shall be
included in the Company's SB-2 filing scheduled for filing prior to September 1,
2004, and, provided
Executive remains in the employ of the Company; (iii) 25,000 Shares on or about
August 1, 2005; and (iv) 25,000 Shares on or about 2006.
(g) Company shall reimburse Executive for Executive's
reasonable expenses incurred due to the relocation from Executive's present home
to a location in reasonable proximity to Company's executive offices. Included
within the foregoing shall be all real estate broker's commissions paid by
Executive in connection with the sale of his current residence, and reasonable
rental expenses incurred in connection with obtaining temporary residence in or
around Tampa, Florida during Executive's search for a new residence (up to three
months). It is the intent of the parties that the Executive be "made whole" with
respect to his relocating himself and his family to Tampa, Florida. Executive
shall obtain three competitive bids.
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 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) A material default by the Company of its obligations
under the terms of one or more of the merger/acquisition agreements set forth in
Exhibit A annexed hereto, which default results in the termination of the
Company's rights under said agreements and the buy back of the shares of the
acquired/merged company by the shareholders pursuant to the terms thereof.
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;
(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.
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 15th day of June, 2004.
EYE CARE INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx
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Xxxxx X. Xxxxxx Xxxxx Xxxxxx
Chief Executive Officer
