TERMINATION AGREEMENT
AGREEMENT dated as of July 1, 2001, between Eye Care Centers of America,
Inc., a Texas corporation (the "Company") and Xxxxxxx X. Xxxxxxx (the
"Executive"). Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Employment Agreement (as defined
herein).
WHEREAS, the Company and the Executive are parties to that certain
Employment Agreement dated April 24, 1998 (the "Employment Agreement"); and
WHEREAS, The Company and the Executive desire to terminate the Employment
Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreement set
forth herein, the parties hereto agree as follows:
1. Chief Executive Officer. The Company and the Executive hereby
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acknowledge that the Executive has provided the Company with notice of this
resignation as Chief Executive Officer of the Company effective July 2, 2001.
The Executive's employment with the Company as Chief Executive Officer of the
Company will formally terminate upon July 2, 2001 (the "Termination Date"). As
of the Termination Date, the Executive shall cease to be Chief Executive Officer
of the Company but will continue as Chairman of the Company's Board of Directors
of the Company. The Executive will continue to perform his regular duties and
responsibilities for the Company on a full-time basis until the Termination
Date.
2. Termination of Employment Agreement. Any and all effective
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provisions of the Employment Agreement, except for Section 10, 11, 12 and 13 of
the Employment Agreement, are hereby terminated and canceled in their entirety
in all respects as of the Termination Date and shall be of no further force and
effect as of such date. The Company will pay the Executive all wages due to
Executive pursuant to Section 3 of the Employment Agreement in the amount of $0
through the Termination Date and accrued and unused vacation pay as provided
under the terms of Section 5 of the Employment Agreement in the amount of
$32,308.00 through the Termination Date. The Company and the Executive
acknowledge and agree that neither party shall have any further rights or
obligations under the Employment Agreement, except as specifically set forth
herein with respect to Sections 10, 11, 12 and 13 of the Employment Agreement.
3. Stock Options. The Company has previously granted the Executive
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options to purchase the Company's Common Stock (all such options previously
granted collectively referred to herein as the "Options"). The Options have
been cancelled pursuant to that certain Option Cancellation Agreement dated as
of June 15, 2001 and have ceased to vest on the Termination Date.
4. Chairman. The Executive shall continue as an employee of the
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Company in the capacity of Chairman of the Company's Board of Directors.
Executive shall be entitled to compensation equal to Eight Thousand Three
Hundred and Thirty-Three Dollars ($8,333) per month subject to withholding and
payable in accordance with the Company's standard payroll policy, commencing on
July 2, 2001. The Executive will not be entitle to any further incentive
compensation or bonus. The Executive shall continue as a full-time employee and
shall continue to be eligible to participate in the benefits that the Company
offers to its full-time employees from time to time; provided, however, that the
Executive shall not be entitled to any paid vacation. This Section 4 shall not
be construed as an agreement, either express or implied, to employ the Executive
for any stated term, and shall in no way alter the nature of the relationship
between the Executive and the Company after the Termination Date as an
employment at will in which either party may terminate the employment
relationship, with or without cause, at any time, with or without notice.
Nothing herein shall be construed as an agreement, either express or implied, to
pay the Executive any compensation or severance or grant to the Executive any
benefit beyond the end of the Executive's employment with the Company except as
otherwise determined by and in the sole discretion of the Company's Board of
Directors.
5. Restrictive Covenants. Executive hereby acknowledges that he
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continues to be bound by the restrictive covenants contained in Section 10, 11
and 12 of the Employment Agreement. Any restrictions by which the Executive is
bound following the termination of his employment shall commence upon the
termination of Executive's employment with the Company pursuant to Section 4
above.
6. Release. In partial exchange for the agreements set forth herein,
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the Executive agrees that upon the Executive's termination of his employment
with the Company, he will execute and deliver a general release in a form
reasonably acceptable to the Company. The Company and the Executive agree that
during the Executive's employment with the Company and following the Executive's
separation from employment with the Company, the Executive will not defame,
disparage or in any way malign the Company, its officers, directors or past and
present employees to anyone, including, but limited to, prospective employers,
competitors, vendors or suppliers to the Company and current and former
employees of the Company. The Company agrees that it will not defame, disparage
or malign Executive in any way to any third party.
7. Entire Agreement. This Agreement, Section 10, 11, 12 and 13 of the
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Employment Agreement, the Note, the Option Agreement and the Option Letter, each
as amended hereby, the Purchase Agreement and the Stockholders' Agreement
contain the entire understanding of the parties with respect to the employment
of the Executive by the Company and supersede any prior agreements between the
Company and the Executive (including the Employment Agreement, other than
Sections 10, 11, 12 and 13). If any portion of this Agreement is found to be
unenforceable, then both the Executive and Company desire that all other
portions that can be separated from it or appropriately limited in scope shall
remain fully enforceable.
8. Governing Law. This Agreement shall be construed as a document
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under seal and it shall be governed by the laws of the Company's jurisdiction of
incorporation, from time to time, without regard to the conflict of laws
principles thereof. Each party hereby consents to the personal jurisdiction of
the Company's jurisdiction of incorporation, acknowledges that venue is proper
in any state or federal court in such jurisdiction and waives any objection to
the foregoing.
9. Acknowledgment. The Executive acknowledges that he has read this
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Agreement, understands it, and that he is voluntarily entering into it.
10. Descriptive Headings. The descriptive headings of this Agreement
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are inserted for convenience only and do not constitute a part of this
Agreement.
11. Counterparts. This Agreement may be executed in counterparts, each
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of which shall be deemed an original and all of which shall constitute one
agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
an authorized officer, and the Executive has executed this Agreement as of the
___ day of ____, 2001.
EYE CARE CENTERS OF AMERICA, INC.
By: /s/ Xxxx X. Xxxxx
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Executive Vice President,
Chief Financial Officer,
Secretary and Treasurer
By: /s/ Xxxxxxx X. Xxxxxxx
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Executive
