EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the 2nd day of March, 1998, is between
Sterling Vision, Inc., a New York corporation having an office at 0000
Xxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxx Xxxx 00000 (the "Company"), and
Xxxxxxx X. Xxxxx, an individual residing at 00 Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxx Xxxx 00000 (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to obtain the services of the Employee, on
its own behalf and on behalf of all existing and future affiliated entities
(defined as any corporation or other business entity or entities that,
directly or indirectly, controls, is controlled by, or is under common control
with the Company), and the Employee desires to be employed by the Company upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, and for the other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Company and the Employee hereby agree as follows:
1. Term of Employment.
The Company hereby employs the Employee to render services to the
Company in the position and with the duties and responsibilities
described in Section 2 hereof commencing on March 30, 1998 (the
"Effective Date") and continuing thereafter for a period of two (2)
years, unless earlier terminated in accordance with the provisions of
Section 4 hereof. For purposes of this Agreement, the "Term of
Employment" shall be the two (2) year period commencing on the Effective
Date, subject to earlier termination pursuant to Section 4 hereof.
2. Position, Duties, Responsibilities.
(a) Position. The Employee hereby accepts such employment and agrees to
serve as the Chief Financial Officer of the Company or in such other
position(s) as the Board of Directors (the "Board") of the Company, at
any time, designate. The Employee shall devote his best efforts and his
full business time and attention to the performance of the services
customarily incidental to the office of Chief Financial Officer and to
such other services as may be reasonably requested by the Board. The
Company shall retain full direction and control over the means and
methods by which the
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Employee shall perform the above services and of the place(s) at which
such services are to be rendered. With respect to the foregoing, it is
expressly understood and agreed that the Employee shall not be required
to relocate his personal residence to outside of Nassau County, New
York.
(b) Other Activities. Except upon the prior written consent of the
Board, the Employee, during the Term of Employment, will not: (i) accept
any other employment; (ii) serve on the board of directors of any other
corporation; provided, however, that the Employee may serve in any
capacity with any civic, educational or charitable organization or
governmental entity or trade association; or (iii) engage, directly or
indirectly, in any other business activity (whether or not pursued for
pecuniary advantage) that is or may be competitive with, or that might
place him in a competing position to that of, the Company or any of its
affiliated entities.
3. Salary; Benefits; Expenses.
(a) Salary. In consideration of the services to be rendered hereunder,
the Employee, during the Term of Employment, shall be paid a salary
computed at the rate of One Hundred Twenty-Five ($125,000) Dollars per
annum, payable in substantially equal, semi-monthly installments.
(b) Benefits and Other Arrangements. In addition to the compensation set
forth in Section 4(a) hereof, the Employee shall be entitled to
participate in any plan, arrangement or policy of the Company providing
for medical benefits, and/or sick leave on substantially the same terms
as are generally made available to the other employees of the Company.
(c) Automobile Allowance. In addition to the salary set forth in Section
4(a) hereof, the Company, during the Term of Employment, shall provide
the Employee with an automobile allowance of Four Hundred ($400.00)
Dollars per month.
(d) Vacation. The Employee shall be entitled to a four (4) week, paid
vacation during each year of the Term of Employment, such vacation to:
(i) accrue at the rate of two (2) days for each month worked by the
Employee, other than the months of September and October; and (ii) be
subject to the Company's general policies, as the same may be amended
from time to time; provided, however, that if the Employee, due to his
work load, is restricted from taking said vacation (or any portion
thereof) during any year of the Term of Employment, said unused vacation
days shall carry over to the ensuing year. With respect to the
foregoing, it is understood that
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in the event the employment of the Employee shall cease at a time when
the Employee has earned, but not used vacation days, the Employee shall
be compensated for such unused vacation days.
(e) Expenses: The Employee shall be entitled to reimbursement for all
ordinary and necessary business expenses incurred in the performance of
his duties hereunder, subject to the Company's receipt of adequate
substantiation and/or documentation thereof.
(f) Bonus: In addition to the salary set forth in Section 3(a) hereof,
the Employee shall be entitled to an annual bonus of $12,500.00, payable
to the Employee in equal, monthly installments, within five (5) days
after the expiration of each month included within the Term of
Employment, it being understood that: (i) subject to the provisions of
clause (ii) below, the payment of each such monthly bonus shall be
conditioned on the Employee then being in the employ of the Company;
(ii) in the event the employment of the Employee ceases for any reason
(other than pursuant to the provisions of Subsection 4(b) below) and
such additional compensation theretofore paid to the Employee is less
then the aggregate sum of $25,000, the Company shall, within five (5)
business days after such cessation, pay the difference to the Employee;
and (iii) any additional bonuses will be at the sole discretion of the
Compensation Committee of the Company's Board of Directors.
(g) Employee Stock Options. In addition to the benefits available to the
Employee pursuant to Subsection 3(b) hereof, the Company, simultaneously
upon the execution hereof, shall execute and deliver to the Employee the
Non-Qualified Stock Option Agreement annexed hereto as Exhibit A.
4. Termination.
(a) The employment of the Employee hereunder may be terminated by the
Company on not less than thirty (30) days prior written notice to the
Employee in the event that the Employee is determined to be permanently
disabled. As used in this Section, the Employee shall be deemed to be
"permanently disabled" if the Employee has been substantially unable to
discharge his duties and obligations hereunder, by reason of illness,
accident or disability, for a period of thirty (30) or more consecutive
days. In the event the employment of the Employee is terminated because
of a permanent disability, the Employee shall receive (net of all
benefits available to the Employee under any policy of disability
insurance the available to the Employee) compensation until the earlier
of the date which is two and one-half (2 1/2) months after the date on
which the Employee first became disabled and the date on which the
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Term of Employment shall expire pursuant to the terms hereof, payable at
the rate and on the terms provided hereby as if he had not been
terminated.
(b) The employment of the Employee hereunder may be terminated by the
Company for cause, at any time during the Term of Employment, upon ten
(10) days' prior written notice to the Employee and the Employee's
failure to remedy the events which gave rise to said notice, in the
event the Employee shall have: (i) wilfully refused or failed, to
perform his duties hereunder, other than any such failure resulting from
the Employee's incapacity due to illness or injury; or (ii) been guilty
of a material or willful breach of any of the terms or provisions of
this Agreement or any other material legal obligation to the Company;
provided, however, that no such notice and opportunity to cure shall be
required more than two (2) times in any twelve (12) month period. In
addition to the foregoing, the employment of the Employee hereunder may
be terminated by the Company for cause, at time during the Term of
Employment, upon written notice from the Company that the Employee shall
have: (i) demonstrated gross negligence or willful misconduct in the
execution of his assigned duties; or (ii) been convicted of a felony or
other serious crime.
(c) The employment of the Employee hereunder shall automatically be
deemed terminated on the date of the Employee's death.
(d) If the Employee's employment is terminated pursuant to Subsections
4(b) or (c) above, the Employee shall be entitled to, and the Company's
obligation shall be limited to, the payment of the compensation accrued
under Subsection 3(a) hereof to the date of such termination or, in the
case of a termination under Subsections 4(a) hereof, to the date
specified therein, all, however, subject to the provisions of Subsection
4(f) hereof and the payment of any remaining, additional compensation
then due the Employee thereunder, if any.
5. Confidentiality.
(a) The Employee shall not, during the Term of Employment or at any time
thereafter, use (other than in the performance of his duties to the
Company) or disclose to any person, firm or corporation (except as
required by law or with the prior written approval of the Company) any
information concerning the business, inventions, discoveries, clients,
affairs or other trade secrets of the Company that he may have acquired
in the course of, or as an incident to, his employment by the Company.
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(b) The obligations of confidentiality and non-use set forth in
Subsection (a) above shall not apply to information: (i) which is or
becomes published in any written document or otherwise is or becomes a
part of the public domain without breach of the aforementioned
obligations by the Employee; or (ii) which the Employee can establish
was already in his possession and not subject to a secrecy obligation at
the time he encountered such information in the course of, or as an
incident to, his employment by the Company. Specific information shall
not be deemed published or otherwise in the public domain, or in the
Employee's prior possession, merely because it is encompassed by some
general information published, or in the public domain, or in the
Employee's prior possession.
(c)As a material inducement for the Company to enter into this
Agreement, and expressly in partial exchange for the performance of the
Company's obligations under this Agreement, the Employee hereby
covenants and agrees that during the Term of Employment and for a period
of six (6) months thereafter, he will not, either on his own account, or
directly or indirectly in conjunction with or on behalf of any person,
firm or company:
(i) Solicit or employ, or attempt to solicit or employ, any person who
is then or has, within the six (6) month period prior thereto, been an
officer, director or employee of the Company or any of its affiliates,
whether or not such a person would commit a breach of his or her
contract of employment, if any, by reason of leaving the service of the
Company or any of its affiliates;
(ii)Solicit the business of any person, firm or company which is then,
or has been, at any time during the preceding six (6) month period prior
to such solicitation, a customer, client, contractor, supplier or agent
of the Company or of any of its affiliates; or
(iii) Provided the employment of the Employee has been terminated
pursuant to Subsection 5(b) hereof, carry on or be engaged, concerned or
interested in, or devote any material time to the affairs of, any trade
or business competing with the then trade or business of the Company or
any of its affiliates, or take advantage of any of its affiliates.
6. Notices.
Any notice, request, claim, demand or other communication hereunder to
any party shall be effective upon receipt (or refusal of receipt) and
shall be in writing and delivered personally or sent by telex, telecopy,
or certified or registered mail, return receipt requested, postage
prepaid, as follows:
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(i) If to the Company, addressed to its principal executive offices to
the attention of its General Counsel, with a copy to be simultaneously
delivered to the Chairman of the Board of Directors; or (ii) If to the
Employee, to him at the address set forth above; or (iii) at any such
other address as either party shall have specified by written notice
given to the other as herein provided.
7. Entire Agreement.
The terms of this Agreement are intended by the parties to be the final
expression of their agreement with respect to the employment of the
Employee by the Company and may not be contradicted by evidence of any
prior or contemporaneous agreement. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its
terms and that no extrinsic evidence, whatsoever, may be introduced in
any judicial, administrative or other legal proceeding involving this
Agreement.
8. Amendments; Waivers.
Except as otherwise set forth in Section 4 hereof, this Agreement may
not be modified, amended or terminated except by an instrument, in
writing, signed by the Employee and by a duly authorized representative
of the Board. By an instrument in writing similarly executed, either
party may waive compliance by the other party with any provision of this
Agreement that such other party was or is obligated to comply with or
perform; provided, however, that such waiver shall not operate as a
waiver of, or estoppel with respect to, any other or subsequent failure.
No failure to exercise, and no delay in exercising, any right, remedy or
power hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy or power hereunder preclude any
other or further exercise thereof or the exercise of any other right,
remedy or power provided for herein, or by law, or in equity.
9.Severability; Enforcement.
If any provision of this Agreement, or the application thereof to any
person, place or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable or void, the remainder of this
Agreement and such provisions as applied to other persons, places and
circumstances, shall remain in full force and effect.
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10.Assignability.
(a) In the event that the Company shall merge or consolidate with any
other corporation, partnership or business entity, or all or
substantially all the Company's business or assets shall be transferred,
in any manner, to any other corporation, partnership or business entity,
such successor shall thereupon succeed to, and be subject to, all
rights, interests, duties and obligations of, and shall thereafter be
deemed for all purposes hereof to be, the Company hereunder.
(b) This Agreement is personal in nature, and none of the parties hereto
shall, without the prior written consent of the other, assign or
transfer this Agreement or any of its or his rights or obligations
hereunder, except by operation or law or pursuant to the terms of this
Section 11.
(c) Nothing expressed or implied herein is intended or shall be
construed to confer upon, or give to any person, other than the parties
hereto, any right, remedy or claim under, or by reason of, this
Agreement, or of any term, covenant or condition hereof.
11. Restrictive Covenants:
To the extent that a restrictive covenant contained herein may, at any
time, be more restrictive than permitted under the laws of any
jurisdiction where this Agreement may be subject to review and
interpretation, the terms of such restrictive covenant shall be those
allowed by law and the covenant shall be deemed to have been revised
accordingly.
12. Governing Law.
The validity, interpretation, enforceability and performance of this
Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
13.Employee's Representation and Acknowledgment.
The Employee hereby represents that he is free to enter into this
Agreement and is not under any contractual restraint which would
prohibit him from satisfactorily performing his duties to the Company
hereunder. The Employee also acknowledges: (i) that he has consulted
with or has had the opportunity to consult with independent counsel of
his own choice concerning this Agreement and has been advised to do so
by the Company; and (ii) that he has read and understands this
Agreement, is fully aware of its legal effects and has entered into it
freely, based upon his own judgment.
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14.Arbitration.
Any controversy between the Employee and the Company, or any employee,
director or stockholder of the Company, involving the construction or
application of any of the terms, provisions or conditions of this
Agreement or otherwise arising out of, or related to, this Agreement,
shall be settled by arbitration in accordance with the then current
commercial arbitration rules of the American Arbitration Association,
and judgment on the award rendered by the arbitrator may be entered by
any court having jurisdiction thereof. The location of the arbitration
shall be Nassau County, New York.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
STERLING VISION, INC.
By: /s/Xxxxxx Xxxxx
--------------------------
Title: Chairman of the Board
EMPLOYEE
/s/Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
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