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EXHIBIT 10.1
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
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THIS AMENDMENT (the "Amendment"), dated as of January 2, 1997, and among
CAMBRIDGE EYE ASSOCIATES, INC. (f/k/a CEA Acquisition Corp.), a Delaware
corporation (the "Company"), SIGHT RESOURCE CORPORATION (f/k/a NewVision
Technology, Inc.), a Delaware corporation ("SRC"), and XXXXXX X. XXXXXXXXX, O.D.
(the "Employee").
WHEREAS, the parties have previously entered into an Employment Agreement
dated as of February 24, 1995 (the "Agreement"; capitalized terms used herein
without definition having the meanings ascribed to such terms in the Agreement),
pursuant to which, among other things, the Employee serves as the Company's
President;
WHEREAS, in connection with the settlement of a dispute between Xxxxx Xxxxx
("Xxxxx") on the one hand, and the Employee, the Company, ESW, Inc. (f/k/a
Cambridge Eye Associates. Inc.), Xxxxxx X. Xxxxx and SRC on the other hand, the
parties and Xxxxx entered into a Settlement Agreement and Mutual Release dated
as of December 27, 1995, pursuant to which, among other things, the Company and
SRC transferred to Xxxxx the aggregate sum of $288,000 and an aggregate of
14,300 shares of common stock of SRC (the "Xxxxx Settlement"); and
WHEREAS, in connection with the foregoing, the parties desire to amend
and/or clarify certain terms and provisions of the Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
Section 1. RELEASE. In consideration of the amendments to the Agreement
described below, and in exchange for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by all parties hereto,
each of SRC, the Company, Xxxxxxx Vision World, Inc., Cambridge Eye Doctors of
New Hampshire, Inc., X.X. Xxxxx Opticians, Inc. and Optometric Providers, Inc.
on behalf of itself and its respective agents, successors, predecessors,
assigns, employees, officers, directors, shareholders, parents, subsidiaries and
affiliated corporations, partners, limited partners, trustees, servants and
attorneys (collectively, the "SRC Releasors") hereby forever releases,
discharges and covenants not to xxx each of the Employee and ESW, Inc. and their
respective heirs, administrators, executors, agents, servants, successors,
assigns, predecessors, employees, officers, directors, shareholders, parents,
subsidiaries and affiliated corporations, partners,
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limited partners, trustees and attorneys (collectively, the "Employee
Releasees") of, from and concerning all manner of actions, causes of action,
suits, sums of money, covenants, contracts, agreements, promises, liabilities,
damages, rights, claims and demands whatsoever, whether in law or in equity
(collectively, the "Claims"), whether known or unknown, vested or contingent,
direct or indirect, which any SRC Releasor ever had, now has or hereafter may
have against any Employee Releasee for any reason whatsoever, in each case which
Claim (a) is based on an action or failure to act from the beginning of the
world to the date of this Amendment and (b) arises out of or in any way relates
to (i) the Agreement, (ii) the Asset Transfer Agreement dated as of February 24,
1995 by and among SRC, the Company, ESW, Inc. (f/k/a Cambridge Eye Associates,
Inc.) and the Employee, (iii) any Ancillary Agreement (as defined in such Asset
Transfer Agreement), (iv) the Optometric Records Transfer Agreement, dated
February 24, 1995, among ESW, Inc., Optometric Providers, Inc. and the Company,
(v) the Amended and Restated Credit Agreement, dated as of February 24, 1995,
between the Company and Arab Banking Corporation and all documents related to
the transactions contemplated thereby, (vi) the Advisory Board Agreement, dated
August 18, 1994, between the Employee and SRC, (vii) the Non-Disclosure and
Confidentiality Agreement, dated August 18, 1994, between SRC and the Employee,
(viii) the Non-Qualified Stock Option Agreement, dated August 19, 1994, as
amended, between SRC and the Employee, (ix) Xxxxx and (x) the Xxxxx Settlement.
Section 2. AMENDMENT TO DUTIES AS PRESIDENT. The last sentence of
Section 1 of the Agreement is amended by deleting such sentence in its entirety
and substituting in lieu thereof the following:
"Until January 5, 1997, you agree to devote your full business time and
energies to the business and affairs of the Company and its Subsidiaries,
if any, as is necessary from time to time for your fulfillment of your
obligations to the Company hereunder. From January 5 through December 31,
1997, you agree to devote approximately two full business days per week to
the business and affairs of the Company and its Subsidiaries which (i)
relate to Optometric Providers, Inc. or (ii) which relate to the Management
Agreement between the Company and Optometric Providers, Inc."
Section 3. AMENDMENT TO TERM OF EMPLOYMENT. Section 2(a) of the
Agreement is amended by deleting the words "the third anniversary thereof" in
the second line thereof and inserting in lieu thereof the words "December 31,
1997" in lieu thereof.
Section 4. AMENDMENT TO COMPENSATION AS PRESIDENT.
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Section 3(a) of the Agreement is amended by deleting such subsection in its
entirety and substituting in lieu thereof the following new Section 3(a):
In consideration for your services under this Agreement (i) until January
5, 1997 you shall be paid at the annual rate of One Hundred Seventy-Five
Thousand Dollars ($175,000) and (ii) after January 5, 1997 you shall be
paid at the annual rate of Seventy Thousand Dollars ($70,000), subject in
each case to increase from time to time by action of the Board in
accordance with your performance and the Company's performance ("Base
Salary"), and payable at such intervals as may be agreed upon by the
Company and you, less any amounts required to be withheld under applicable
law. Such compensation will be reduced by any disability payments which you
receive with respect to the applicable period under this Agreement, after
taking into account the tax benefit (if any) of such payments."
Section 5. AMENDMENT TO SEVERANCE PROVISIONS. (a) In connection with
the foregoing amendments to the Agreement, Section 3(b) of the Agreement is
amended by deleting such subsection in its entirety and substituting in lieu
thereof the following new Section 3(b):
"(b) In the event your employment shall be terminated by the Company
without Cause at any time prior to December 31, 1997, or in the event that
you terminate your employment hereunder prior to December 31, 1997 by
reason of any material change in your duties imposed by the Board of
Directors of the Company (other than any change contemplated by that
certain Amendment No. 1 to this Agreement dated as of January 2, 1997) or
by reason of any material breach by the Company of its obligations to you,
the Company shall (i) during the period beginning on the date of such
termination and ending on December 31, 1997, pay you the Base Salary to
which you would be entitled to during such period pursuant to Section 3(a)
and (ii) during the period beginning on the date of such termination and
ending on the earlier of June 30, 1998 and the date which is 12 months
after the date of such termination, pay and provide to you such benefits as
you were then receiving or entitled to pursuant to Section 6(a) hereof;
PROVIDED, HOWEVER, that the benefits described in paragraph 2 of Schedule A
to the Agreement, shall continue as provided in such paragraph 2.
(b) In connection with the foregoing amendments to the Agreement, the
fourth paragraph of Section 7 of the Agreement is amended by deleting such
paragraph in its entirety and substituting in lieu thereof the following new
paragraph:
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"In the event of such a termination of employment as a result of your death
or total and permanent disability, the Company shall have no further
obligations hereunder except as provided in Sections 3 and 9 hereof and
except as provided below in this Section 7:
(a) In the event of death prior to December 31, 1997, (i) the Company
shall pay to your estate amounts, at the Base Salary rate in effect on
the termination date, payable in monthly payments, through December
31, 1997 and (ii) through the earlier of June 30, 1998 and the date
which is 12 months after your death, your estate shall be entitled to
continue to receive the benefits you have been receiving or were
entitled to under paragraph 3 of Schedule A and under paragraph 2 of
Schedule A; and
(b) In the event of total and permanent disability prior to December
31, 1997, (i) the Company shall pay to you (or your estate) amounts,
at the Base Salary rate in effect on the termination date, payable in
monthly payments, through December 31, 1997 and (ii) through the
earlier of June 30, 1998 and the date which is 12 months after such
termination date you (or your estate) shall continue to be entitled to
receive such benefits as you were then receiving pursuant to Section
6(a) hereof and under paragraph 2 of Schedule A. Amounts to which you
would otherwise be entitled under clause (i) of this subparagraph (b)
above shall be reduced by the amount of any disability insurance
proceeds actually paid to you or paid for your benefit (or to your
estate or legal representatives) with respect to such payment period
following the termination date under any disability policy provided by
the Company.
(c) In connection with the foregoing amendments to the Agreement, the
first sentence of Section 8(a) of the Agreement is amended by deleting such
sentence in its entirety and substituting in lieu thereof the following new
sentence:
"In the event you, the Company, or a successor to the Company elects to
terminate your employment upon a Change of Control (as defined in Section
8(b) below), provided that the terminating party gives notice of such
termination (a "Change of Control Notice") within twenty-four (24) months
of a Change of Control, then upon such termination pursuant to this
paragraph, you (or your estate, if you die prior to receiving the payments
hereinafter set forth in this
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sentence) shall, through the period ending on December 31, 1997, be
entitled to receive, in monthly payments, your Base Salary in effect on the
date of such termination."
Section 6. AMENDMENT TO COMPETITION. In connection with the foregoing
amendments to the Agreement, Section 10 of the Agreement shall be amended by
deleting such Section in its entirety, which amendment shall only become
effective as of the date which is the later of (i) the date you cease to be an
employee of the Company or any of its affiliates and (ii) the date you cease to
be a director of SRC.
Section 7. AMENDMENT TO NOTICE PROVISION. Section 15 of the Agreement
is amended to provide that the address for notices and communications to the
Employee is as follows: 00 Xxxxx Xxxx Xxxx, Xxxxxxxx, XX 00000.
Section 8. CONFORMING AMENDMENT. In connection with the foregoing
amendments to the Agreement, the term "Acquisition" appearing in Sections 24 and
25 is deleted and the term "the Company" is inserted in lieu thereof.
Section 9. FURTHER ASSURANCES; COVENANTS. Each party hereby agrees, at
any time and from time to time after the date hereof, at the reasonable request
of the other party, to execute and deliver such other agreements, certificates
or instruments as may be reasonably requested in order to more effectively amend
the Agreement as set forth above. SRC and the Company hereby represent and
covenant as follows: (i) as promptly as practicable after the execution and
delivery of this Amendment, the Employee shall be replaced as a Trustee of the
Cambridge Eye Associates so-called "401(k) plan"; and (ii) the Key Man Life
Insurance Policy regarding the Employee and referred to in Section 4.01(f) of
the Amended and Restated Credit Agreement, dated as of February 24, 1995,
between the Company and Arab Banking Corporation, has been terminated and is no
longer in effect.
Section 10. ADVISORY BOARD. The Advisory Board Agreement, dated August
18, 1994 between the Employee and SRC and the Non-Disclosure and Confidentiality
Agreement, dated August 18, 1994, between SRC and the Employee are hereby
terminated and are null and void and of no further force or effect.
Section 11. EFFECT OF AMENDMENT. The parties hereby ratify and confirm
all of the provisions of the Agreement, as amended hereby, and agree and
acknowledge that the Agreement as so amended remains in full force and effect.
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Section 12. GOVERNING LAW. This Amendment shall be deemed to be a
contract made under the laws of the Commonwealth of Massachusetts and for all
purposes shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts applicable to contracts to be made and performed
entirely within the Commonwealth of Massachusetts.
Section 13. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the day and year first above written.
SIGHT RESOURCE CORPORATION
By /s/ Xxxxxxx X. XxXxxxxx
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Xxxxxxx X. XxXxxxxx
President
Hereunto Duly Authorized
CAMBRIDGE EYE ASSOCIATES, INC.
By: /s/ Xxxx XxxXxxxxx
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Xxxx XxxXxxxxx
Treasurer
Hereunto Duly Authorized
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
For Purposes of Section 1:
Xxxxxxx Vision World, Inc.
By /s/ Xxxx XxxXxxxxx
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Name:
Title:
Hereunto Duly Authorized
Cambridge Eye Doctors of New Hampshire, Inc.
By /s/ Xxxx XxxXxxxxx
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Name:
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Title:
Hereunto Duly Authorized
X.X. Xxxxx Opticians, Inc.
By /s/ Xxxx XxxXxxxxx
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Name:
Title:
Hereunto Duly Authorized
Optometric Providers, Inc. (f/k/a New Vision Optometry, Inc.)
By /s/ Xxxx XxxXxxxxx
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Name:
Title:
Hereunto Duly Authorized
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