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EXHIBIT 4(h)(3)
EMPLOYMENT TERMINATION AGREEMENT AND RELEASE
--------------------------------------------
TITMUS OPTICAL, INC. (the "Company") and XXXXXX X. XXXXXX ("Xxxxxx") hereby
agree as follows:
1. The Company accepts Xxxxxx'x voluntary resignation as an officer and
director of the Company effective December 31, 1996.
2. The Company accepts Xxxxxx'x voluntary resignation as the President
and as a Director of the Company effective as of the close of business on
December 31, 1996.
3. Xxxxxx'x employment with the Company shall be terminated on the
earlier of (i) receipt by Xxxxxx of a notice (the "Termination Notice") from the
Company stating the date of termination or (ii) February 28, 1997 (the
"Termination Date").
4. The Company shall continue to provide its current medical and dental
coverage for Xxxxxx until the Termination Date. Following that date, the Company
will respect Xxxxxx'x rights, if any, to continued medical coverage at his own
expense under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
5. The execution of this Agreement shall not be construed as an admission
of a violation of any statute or law or breach of any duty or obligation by
either the Company or Xxxxxx.
6. This Agreement is confidential and shall not be made public by either
the Company or Xxxxxx except as required by law or if necessary in order to
enforce this Agreement.
7. Xxxxxx acknowledges that the accommodations made to Xxxxxx with
respect to his continued employment until the Termination Date and payment
provided for in paragraph 3 of this Agreement are greater than any to which he
may have otherwise been entitled under any existing Company separation, benefit
or compensation policy. In consideration of the foregoing, Xxxxxx hereby
releases and forever discharges the Company, its present and former officers,
employees, agents, partners, subsidiaries, successors and assigns from any and
all liabilities, causes of action, debts, claims and demands both in law and in
equity known or unknown, fixed or contingent, which he may have or claim to have
based upon or in any way related to employment or termination of employment with
the Company and hereby covenants not to file a lawsuit or charge to assert such
claims. This includes but is not limited to claims arising under federal, state
or local laws prohibiting employment discrimination, including specifically the
Age Discrimination in Employment Act of 1967, as amended ("ADEA"), or claims
growing out of any legal restrictions on the Company's right to terminate its
employees.
8. In consideration of the foregoing, from the date hereof forward
Xxxxxx will not directly or indirectly, (without the Company's prior written
consent) use for himself or use for, or disclose to, any party other than the
Company, any secrets or confidential information or data regarding the business
of the Company or any secret or confidential information or data regarding the
costs, uses,
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methods, applications, customers, agents, trade accounts or suppliers and
pertinent information respecting transactions (and prospective transactions
relating thereto) of products or services purchased, made, produced, or sold by
the Company, or regarding any secret or confidential process, system or other
method at any time used, developed or investigated by the Company during
Xxxxxx'x employment by the Company. For purposes of this Agreement,
"Confidential Information" means information, not generally known, and
proprietary to the Company about the Company's processes and products, including
information relating to research, development, financing, manufacture,
purchasing, accounting, marketing, advertising, merchandising and selling. In
addition, confidential information includes any information disclosed to Xxxxxx
or obtained by Xxxxxx, during the period of his employment which he had a
reasonable basis to believe was confidential information, or which was treated
at any time and in any manner as confidential information by any employee of the
Company. Xxxxxx hereby acknowledges receipt of that certain letter from Xxxxxx
Xxxxxx to Xxxxxx Xxxxxxxx of Xxxx Zeiss, Inc. ("Zeiss") concerning the
obligation of Zeiss not to solicit Company salaried employees for employment by
Zeiss or its affiliates and not to employ Company salaried employees other than
Xxxxxx, in both cases for a five-year period. Xxxxxx hereby agrees to abide by
said letter agreement and not encourage employees of Company to terminate their
employment with Company or seek employment with Zeiss or any other company.
9. As soon as practicable following the Termination Notice and in any
event prior to the Termination Date, Xxxxxx shall promptly return all Company
property and deliver to the Company all memoranda, notes, records, plans and
other documents (including all copies thereof) made or compiled by, delivered
to, or otherwise acquired by Xxxxxx concerning costs, uses, methods, designs,
applications, suppliers, agents, refiners, or purchasers of products made or
sold by the Company.
10. In the event of any violation of the provisions of this Agreement,
the Company shall be entitled, in addition to any other rights or remedies which
it may have, to maintain an action for damages and permanent injunctive relief
and in addition shall be entitled to preliminary injunctive relief, it being
agreed that the substantial irreparable damages which the Company would sustain
by any such violation are impossible to ascertain in advance. Xxxxxx will pay
all attorneys' fees required to enforce compliance with the terms of this
Agreement, to obtain injunctive relief or damages or to otherwise protect the
Company's rights and interests as described in this Agreement.
11. The invalidity or unenforceability of any particular provision of
this Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
12. Xxxxxx understands that various State and Federal laws prohibit
employment discrimination based on age, sex, race, color, national origin,
religion, handicap or veteran status. These laws are enforced through the Equal
Employment Opportunity Commission (EEOC), Department of Labor and state human
rights agencies. Xxxxxx acknowledges that he has been advised by the Company to
discuss this Agreement with his attorney and has been encouraged to take this
Employment Termination Agreement and Release home for up to twenty-one days so
that he can thoroughly review and understand the effect of this release before
acting on it.
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13. Xxxxxx has carefully read and fully understands all of the provisions
of this Termination Agreement and Release which sets forth the entire
understanding between him and the Company. This Agreement may not be changed
orally but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought. Xxxxxx acknowledges that he has not relied upon any representation or
statement, written or oral, not set forth in this document.
14. Xxxxxx may revoke his agreement to the terms hereof at any time
during the seven-day period immediately following the date of his signature
below ("revocation period") by delivering written notice of his revocation to
the Company. This Agreement shall become effective upon the expiration of the
revocation period.
TITMUS OPTICAL, INC.
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------- --------------------------
Xxxxxx Xxxxxx, Chairman Xxxxxx X. Xxxxxx
Dated: 12-19-96 Dated: 12-19-96
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EXHIBIT B
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CERTIFICATE OF XXXXXX X. XXXXXX
-------------------------------
I, Xxxxxx X. Xxxxxx, do hereby certify, as of the date hereof, as to
the following:
1. I have received payment of $_________________, which
represents payment in full of a bonus for fiscal year 1996 and is in
consideration of my execution and delivery of that certain Termination Agreement
and Release (the "Termination and Release"), a copy of which is attached hereto.
2. I do hereby reaffirm all representations and agreements set
forth in the Termination and Release and acknowledge all terms thereof.
--------------------------------
DATED: ______________, 199_. Xxxxxx X. Xxxxxx
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EXHIBIT A
EMPLOYMENT TERMINATION AGREEMENT AND RELEASE
--------------------------------------------
TITMUS OPTICAL, INC. (the "Company") and XXXXXX X. XXXXXX ("Xxxxxx") hereby
agree as follows:
1. The Company accepts Xxxxxx'x voluntary resignation as an officer and
director of the Company effective December 31, 1996.
2. The Company accepts Xxxxxx'x voluntary resignation as the President
and as a Director of the Company effective as of the close of business on
December 31, 1996.
3. Xxxxxx'x employment with the Company shall be terminated on the
earlier of (i) receipt by Xxxxxx of a notice (the "Termination Notice") from the
Company stating the date of termination or (ii) February 28, 1997 (the
"Termination Date").
4. The Company shall continue to provide its current medical and dental
coverage for Xxxxxx until the Termination Date. Following that date, the Company
will respect Xxxxxx'x rights, if any, to continued medical coverage at his own
expense under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
5. The execution of this Agreement shall not be construed as an admission
of a violation of any statute or law or breach of any duty or obligation by
either the Company or Xxxxxx.
6. This Agreement is confidential and shall not be made public by either
the Company or Xxxxxx except as required by law or if necessary in order to
enforce this Agreement.
7. Xxxxxx acknowledges that the accommodations made to Xxxxxx with
respect to his continued employment until the Termination Date and payment
provided for in paragraph 3 of this Agreement are greater than any to which he
may have otherwise been entitled under any existing Company separation, benefit
or compensation policy. In consideration of the foregoing, Xxxxxx hereby
releases and forever discharges the Company, its present and former officers,
employees, agents, partners, subsidiaries, successors and assigns from any and
all liabilities, causes of action, debts, claims and demands both in law and in
equity known or unknown, fixed or contingent, which he may have or claim to have
based upon or in any way related to employment or termination of employment with
the Company and hereby covenants not to file a lawsuit or charge to assert such
claims. This includes but is not limited to claims arising under federal, state
or local laws prohibiting employment discrimination, including specifically the
Age Discrimination in Employment Act of 1967, as amended ("ADEA"), or claims
growing out of any legal restrictions on the Company's right to terminate its
employees.
8. In consideration of the foregoing, from the date hereof forward
Xxxxxx will not directly or indirectly, (without the Company's prior written
consent) use for himself or use for, or disclose to, any party other than the
Company, any secrets or confidential information or data regarding the business
of the Company or any secret or confidential information or data regarding the
costs, uses,
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6
methods, applications, customers, agents, trade accounts or suppliers and
pertinent information respecting transactions (and prospective transactions
relating thereto) of products or services purchased, made, produced, or sold by
the Company, or regarding any secret or confidential process, system or other
method at any time used, developed or investigated by the Company during
Xxxxxx'x employment by the Company. For purposes of this Agreement,
"Confidential Information" means information, not generally known, and
proprietary to the Company about the Company's processes and products, including
information relating to research, development, financing, manufacture,
purchasing, accounting, marketing, advertising, merchandising and selling. In
addition, confidential information includes any information disclosed to Xxxxxx
or obtained by Xxxxxx, during the period of his employment which he had a
reasonable basis to believe was confidential information, or which was treated
at any time and in any manner as confidential information by any employee of the
Company. Xxxxxx hereby acknowledges receipt of that certain letter from Xxxxxx
Xxxxxx to Xxxxxx Xxxxxxxx of Xxxx Zeiss, Inc. ("Zeiss") concerning the
obligation of Zeiss not to solicit Company salaried employees for employment by
Zeiss or its affiliates and not to employ Company salaried employees other than
Xxxxxx, in both cases for a five-year period. Xxxxxx hereby agrees to abide by
said letter agreement and not encourage employees of Company to terminate their
employment with Company or seek employment with Zeiss or any other company.
9. As soon as practicable following the Termination Notice and in any
event prior to the Termination Date, Xxxxxx shall promptly return all Company
property and deliver to the Company all memoranda, notes, records, plans and
other documents (including all copies thereof) made or compiled by, delivered
to, or otherwise acquired by Xxxxxx concerning costs, uses, methods, designs,
applications, suppliers, agents, refiners, or purchasers of products made or
sold by the Company.
10. In the event of any violation of the provisions of this Agreement,
the Company shall be entitled, in addition to any other rights or remedies which
it may have, to maintain an action for damages and permanent injunctive relief
and in addition shall be entitled to preliminary injunctive relief, it being
agreed that the substantial irreparable damages which the Company would sustain
by any such violation are impossible to ascertain in advance. Xxxxxx will pay
all attorneys' fees required to enforce compliance with the terms of this
Agreement, to obtain injunctive relief or damages or to otherwise protect the
Company's rights and interests as described in this Agreement.
11. The invalidity or unenforceability of any particular provision of
this Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
12. Xxxxxx understands that various State and Federal laws prohibit
employment discrimination based on age, sex, race, color, national origin,
religion, handicap or veteran status. These laws are enforced through the Equal
Employment Opportunity Commission (EEOC), Department of Labor and state human
rights agencies. Xxxxxx acknowledges that he has been advised by the Company to
discuss this Agreement with his attorney and has been encouraged to take this
Employment Termination Agreement and Release home for up to twenty-one days so
that he can thoroughly review and understand the effect of this release before
acting on it.
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13. Xxxxxx has carefully read and fully understands all of the provisions
of this Termination Agreement and Release which sets forth the entire
understanding between him and the Company. This Agreement may not be changed
orally but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought. Xxxxxx acknowledges that he has not relied upon any representation or
statement, written or oral, not set forth in this document.
14. Xxxxxx may revoke his agreement to the terms hereof at any time
during the seven-day period immediately following the date of his signature
below ("revocation period") by delivering written notice of his revocation to
the Company. This Agreement shall become effective upon the expiration of the
revocation period.
TITMUS OPTICAL, INC.
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
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Xxxxxx Xxxxxx, Chairman Xxxxxx X. Xxxxxx
Dated: December 19, 1996 Dated: December 19, 1996
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