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EXHIBIT 10.105
FIRST AMENDMENT
TO
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT is
made this 10th day of November, 2000, by and between VISION TWENTY-ONE, INC., a
Florida corporation ("Vision 21"), MEC HEALTH CARE, INC., a Maryland corporation
("MEC"), BLOCK VISION, INC., a New Jersey corporation ("Block Vision"; Vision
21, MEC and Block Vision may be collectively referred to as the "Company"), and
Xxxx X. Xxxxxx, O.D. (the "Executive").
WHEREAS, the Company and the Executive have entered into an Amended And
Restated Employment Agreement effective as of July 31, 2000 (the "Employment
Agreement"); and
WHEREAS, the Company and the Executive have agreed to amend certain
provisions of the Employment Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and contained in the Employment Agreement, the receipt and sufficiency of
which is hereby acknowledged, the parties, intending to be legally bound, hereby
agree as follows:
1. Amendment to Section 3(a). Section 3(a) of the Employment Agreement
captioned "Move Bonus" is hereby amended by deleting same in its
entirety and by inserting the following in lieu thereof:
"(a) Move Bonus. The Executive shall be paid a move bonus (the
"Move Bonus") of $75,000 payable as follows: (i) $37,500 shall
be earned and paid when the accounting and payroll systems for
the Company which are currently operated at Vision 21's office
in Largo, Florida are moved to and are operational in
Baltimore, Maryland, in a commercially reasonable manner; and
(ii) $37,500 shall be (1) earned when the AS400 operating
system and the claims processing and member services functions
which are currently operated at Block Vision's office in Boca
Raton, Florida are moved to and are operational in Baltimore,
Maryland in a commercially reasonable manner, and (2) paid
upon termination of the Bridge Loan Commitment to be provided
for in the amended and restated credit agreement to be entered
into on or about November 10, 2000 among the Company, the Bank
of Montreal as Agent, and the other lenders a party thereto
(the "New Credit Agreement. Notwithstanding the foregoing, if
the Executive's employment is terminated by the Company other
than for (i) "Cause" as described in Section 5(c), or (ii) a
voluntary termination by the Executive as described in Section
5(d), the balance, if any, of the Move Bonus earned and not
previously paid pursuant to subsection (ii) of this Section
3(a) shall become immediately due and payable."
2. Amendment to Section 3(b). Section 3(b) of the Employment Agreement
captioned "Bank Covenant Compliance Bonus" is hereby amended by
deleting same in its entirety and by inserting the following in lieu
thereof:
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"(b) Covenant Compliance Bonus. The Executive shall be paid a
compliance bonus (the "Covenant Compliance Bonus"), equal to
ten percent (10%) of the Executive's annual base salary, if
(i) the Company is in compliance with the covenants contained
in Section 8 of the New Credit Agreement, except for the
covenants contained in Sections 8.25 and 8.26 of the New
Credit Agreement captioned "Minimum EBITDA" and "Interest
Coverage Ratio", respectively, and (ii) the Company has
maintained EBITDA and an interest coverage ratio as set forth
on Schedule 3(b) annexed hereto, (collectively, the
"Covenants"). An amount equal to two and one-half percent (2
1/2%) of the Covenant Compliance Bonus shall be paid to the
Executive for each fiscal quarter during which the Company
maintained compliance with the Covenants. Each quarterly
payment shall be made to the Executive within ten (10) days of
the delivery by the Company's Chief Financial Officer to the
banks which are a party to the New Credit Agreement
(collectively, the "Banks") of the compliance certificate
required under the New Credit Agreement."
3. Continuing Effectiveness of Employment Agreement. As amended hereby,
all terms of the Employment Agreement shall be and remain in full force
and effect and shall continue to be the legal, valid and enforceable
obligations of the parties. The amendments set forth herein are limited
to the matters expressly set forth herein and shall not be deemed to
otherwise modify the terms of the Employment Agreement.
4. Counterparts. This Amendment may be executed by facsimile and in
counterparts each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
5. Governing Law. This First Amendment shall be construed, interpreted and
governed in accordance with the laws of the State of Florida, other
than the conflict of laws provisions of such laws.
IN WITNESS WHEREOF, each of Vision 21, MEC and Block Vision have caused
this First Amendment to be duly executed, and the Executive has hereunto set his
hand, as of the day and year first above written.
VISION TWENTY-ONE, INC. MEC HEALTH CARE, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx, O.D. Name: Xxxx Xxxxxx, O.D.
Title: Chief Executive Officer Title: President
BLOCK VISION, INC. EXECUTIVE:
By: /s/ Xxxxxx Xxxxxxxxx /s/ Xxxx Xxxxxx
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Name: Xxxxxx Xxxxxxxxx Xxxx Xxxxxx, O.D.
Title: Senior Vice President
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Schedule 3(b)
Minimum EBITDA. As of the last day of each fiscal quarter of the
Company, the Company shall maintain EBITDA for the four fiscal quarters then
ended of not less than:
FISCAL QUARTER ENDING ON OR ABOUT MINIMUM EBITDA
12/31/00 $ 500,000
03/31/01 $1,500,000
06/30/01 $2,900,000
09/30/01 $4,600,000
12/31/01 $5,600,000
03/31/02 $6,300,000
06/30/02 $6,400,000
09/30/02 $6,500,000
12/31/02 $6,700,000
03/31/03 $6,700,000
06/30/03 $6,700,000
09/30/03 and thereafter $6,700,000
; provided that EBITDA shall be calculated on December 31, 2000, for the one
fiscal quarter then ended; on March 31, 2001, for the two fiscal quarters then
ended; and on June 30, 2001, for the three fiscal quarters then ended.
Interest Coverage Ratio. As of the last day of each fiscal quarter of
the Company, the Company shall maintain a ratio of (a) EBITDA for the four
fiscal quarters of the Company then ended to (b) Interest Expense for the same
four fiscal quarters of the Company then ended, of not less than:
FISCAL QUARTER ENDING ON OR ABOUT INTEREST COVERAGE RATIO
12/31/00 .40 to 1.0
03/31/01 .65 to 1.0
06/30/01 .85 to 1.0
09/30/01 1.05 to 1.0
12/31/01 1.35 to 1.0
03/31/02 1.50 to 1.0
06/30/02 1.50 to 1.0
09/30/02 1.60 to 1.0
12/31/02 1.50 to 1.0
03/31/03 1.40 to 1.0
06/30/03 1.30 to 1.0
09/30/03 and thereafter 1.25 to 1.0
; provided that EBITDA and Interest Expense shall be calculated on December 31,
2000, for the one fiscal quarter then ended; on March 31, 2001, for the two
fiscal quarters then ended; and on June 30, 2001 for the three fiscal quarters
then ended.
For purposes hereof, the terms "EBITDA" and "Interest Expense" shall have the
meanings given to such terms in the New Credit Agreement.
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