EX-10 2 ex10-1.txt Exhibit 10.1 EMPLOYMENT AGREEMENT AGREEMENT made as of the 15th day of June, 2004, by and between Scott Carson, an individual (hereinafter referred to as "Executive") and EYE CARE INTERNATIONAL, INC., a Delaware corporation with offices in Tampa, Florida (hereinafter sometimes called "ECI" and/or the "Company"). The term "Company" shall be deemed to include Eye Care International, Inc. and all of its subsidiaries (66% control or more) now existing or hereafter acquired. W I T N E S S E T H WHEREAS, the Company desires to retain the services of Executive to render his services to Company and its subsidiaries on the terms and conditions hereinafter set forth; and WHEREAS, Executive is agreeable to rendering such services to the Company on the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Employment Term, Duties and Acceptance (a) Company hereby retains Executive as Company's Executive Vice President/Chief Financial Officer for a period of three (3) years, commencing August 1, 2004 (the "Employment Period"), subject to earlier termination as hereinafter provided, to render his services to Company upon the terms and conditions herein contained, in such executive capacity. In such executive capacity, Executive shall report and be responsible to the Company's Chief Executive Officer. (b) Executive hereby accepts the foregoing employment and agrees to render his services to Company on a full-time basis in such a manner as to reflect his best efforts to the end that the Company's operations are properly managed. In furtherance of Executive performing the duties assigned to him under this Agreement, the Company agrees to provide Executive with a support staff reasonably required by Executive so as to enable him to carry out such duties including one (1) assistant and technology support. 2. Compensation (a) During the first year of the term of this Agreement, Executive shall receive a base compensation of $170,000. Executive's compensation shall be payable in accordance with the general payroll practices of the Company as are from time to time, in effect, less such deductions or amounts as shall be required to be withheld by applicable law or regulation. On each yearly anniversary date, as defined herein, commencing June 16, 2005 (hereinafter sometimes called the "Anniversary Date," in each yearly instance) the Board of Directors shall review the services provided by Executive to determine the amount that Executive's salary shall be increased for the forthcoming yearly period. Such increase shall be an amount equal to the percentage increase in the Consumer Price Index or such other similar index reflective of the cost of living increase in the Tampa Bay, Florida metropolitan area from the beginning of yearly period to the end of the yearly period with respect to the Consumer Price Index applicable to the said metropolitan area, times Executive's base compensation in effect during the said yearly period, plus such additional amount as may be viewed by the Board as meritorious. The sum resulting by way of this increase to the Executive's base compensation shall, for the then immediately succeeding period be considered the Executive's base compensation. The Board of Directors shall also determine on an annual (fiscal or calendar year, as the case may be) basis, the amount, if any, of bonus or incentives to be paid to Executive. Provided, however, that Executive shall receive a special bonus ("special bonus") in an amount equal to one-quarter (1/4) percent of the Company's pre-tax profits from the preceding year (as determined by the application of generally accepted accounting principles), up to the first one-million dollars of such profits; plus an additional sum equal to one-half (1/2) percent of the Company's pre-tax profits over one-million dollars. The special bonus shall be paid within thirty (30) days following determination thereof, which determination shall be made as soon as practicable. (b) During the Employment Period, the Company agrees to obtain and maintain a directors' and officers' liability insurance policy, which includes Executive in such applicable position as he may hold (c) Executive shall be entitled to reasonable paid vacation time (not less than two (2) weeks per annum, but in all events, consistent with the vacation time allotted the Company's other senior executive officers), sick leave and time to attend professional meetings comparable to that offered the executives in comparable positions. (d) Executive shall be entitled (subject to the terms and conditions of particular plans and programs) to all fringe benefits afforded to other senior executives of the Company, including, but not by way of limitation, bonuses and the right to participate in any pension, stock option, retirement, major medical, group health, disability and accident benefit programs made generally available, from time to time, by the Company. (e) Company shall pay or reimburse Executive for reasonable expenses incurred in the performance of his services under this Agreement during the Employment Period, upon presentation of expense statements, vouchers or such other supporting documentation as may reasonably be required. (f) Executive shall, as a sign-on bonus, receive (i) a $10,000 bonus payable as follows: (a) $5,000 on or before December 1, 2004, and (b) $5,000 on or before June 16, 2005; (ii) 25,000 shares of the Company's Class A common stock (the "Shares") on or about August 1, 2004, which Shares shall be included in the Company's SB-2 filing scheduled for filing prior to September 1, 2004, and, provided Executive remains in the employ of the Company; (iii) 25,000 Shares on or about August 1, 2005; and (iv) 25,000 Shares on or about 2006. (g) Company shall reimburse Executive for Executive's reasonable expenses incurred due to the relocation from Executive's present home to a location in reasonable proximity to Company's executive offices. Included within the foregoing shall be all real estate broker's commissions paid by Executive in connection with the sale of his current residence, and reasonable rental expenses incurred in connection with obtaining temporary residence in or around Tampa, Florida during Executive's search for a new residence (up to three months). It is the intent of the parties that the Executive be "made whole" with respect to his relocating himself and his family to Tampa, Florida. Executive shall obtain three competitive bids. 3. Disability (a) Upon the disability, as defined in subparagraph 3(b) hereof, of Executive during the Employment Period, Company may, in its sole discretion, terminate Executive's employment; provided that if the Company elects to so terminate Executive's employment, Executive shall be entitled to receive, accrued but unpaid salary, expense reimbursement and bonuses, the proceeds of any disability insurance policy plus an amount from the Company monthly which, when added to the amount received by the Executive from any disability policy in effect for the Executive at the time of his disability will equal the Executive's salary for a twelve-month period following the date of termination, as if the termination had not occurred. Such termination shall have no effect on the Company's obligation to pay the special bonus referred to hereinbefore. Provided, however, in the event Executive partially perform and discharge the duties previously performed by him for Company, nothing herein shall prevent the Executive from continuing his duties in a part-time capacity, at a level of Compensation to be determined at that time. (b) For purposes of this Agreement the term "disability" shall mean Executive's inability to continue to materially and substantially perform and discharge the duties previously required of him on behalf of the Company for an aggregate period exceeding three (3) consecutive months within any twelve (12) month consecutive period. (c) In the event of a dispute between the parties as to what constitutes a disability, such dispute shall be finally determined by a person mutually agreed upon by Executive and Company. If a mutually acceptable person cannot be selected, such designations shall be made by Executive and Company each choosing a person, which person shall then mutually select a third person (collectively called the "panel"). The panel's determination shall be made by majority vote and such determination shall be deemed binding and conclusive. The parties agree to fully cooperate with whatever procedures and examinations may be required in order to allow the panel to make its determination. 4. Termination of Employment (a) (i) In the event Fifty (50) Percent or more of the equity securities of the Company are acquired by any single person or identifiable group, as defined by the applicable rules and regulations under the Security and Exchange Act of 1934, as amended at an average acquisition price of $5.00 per share or more (valuing promissory notes, preferred stock or subordinated debentures given as consideration at their face value, and valuing any other assets given as consideration at their fair market value) and in the further event that Executive's employment is terminated within twelve (12) months following such event, except if such termination is by reason of "cause" (as that term is defined at paragraph 4(b) hereafter, or (ii) in the event Executive terminates his employment by reason of the uncured breach of this Agreement by Company ("cause"), then, on the termination date, Company shall pay (or issue, as the case may be) to Executive a lump sum amount equal to the aggregate of (i) accrued but unpaid salary, if any; (ii) accrued but unpaid expenses, if any; (iii) accrued but unpaid bonuses, if any; (iv) unissued warrants, if any; and (v) the total compensation which would have been paid to Executive through the longer of (i) the remaining term, if any, of the Employment Period, or (ii) three (3) years compensation. Additionally, as of the termination date, Executive's rights to exercise his warrants, (if any) and/or stock option to the full extent of the shares covered thereby (if said rights had not otherwise matured or vested), shall forthwith mature and vest and Executive shall have the right to exercise his rights under any such securities. If the Executive intends to terminate his employment with the company for "cause", he "cause" shall be specified in a written notice sent by Executive to the Company, and the Company shall be afforded fifteen (15) days or longer, if reasonably required, to cure such breach, if such breach is capable of being cured. (b) In the event of gross misconduct in office by Executive in the performance of his duties hereunder (which shall hereinafter be referred to as "Termination for Cause"), Company may terminate this Agreement by giving two (2) weeks prior written notice to Executive identifying the cause of termination and specifying the effective date of such termination. If Executive is subjected to Termination for Cause, then such "cause" shall be specified in such notice and Executive shall be afforded fifteen (15) days or longer, if reasonably required, to cause such breach, if such breach is capable of being cured. On the termination date Company shall pay to Executive the aggregate of (i) accrued but unpaid expenses, if any (ii) accrued but unpaid bonuses, if any; and (iii) the net salary compensation which would have been paid to Executive through the date of termination. Furthermore, in that event any warrants to be issued pursuant to this Agreement, and any options granted pursuant to plans then applicable to Executive which have not then vested shall be forfeited as of the termination date. (c) In the event Executive resigns or is terminated as an employee of Company and any of its subsidiaries, Executive hereby agrees that his position(s) as officer and director of the Company shall automatically end as of the date of his resignation or termination of employment. (d) A material default by the Company of its obligations under the terms of one or more of the merger/acquisition agreements set forth in Exhibit A annexed hereto, which default results in the termination of the Company's rights under said agreements and the buy back of the shares of the acquired/merged company by the shareholders pursuant to the terms thereof. 5. CONFIDENTIALITY (a) Executive agrees to execute Company's standard form of Confidentiality Non-Competition Agreement as prepared by Counsel to Company. (b) Except if this Agreement is terminated by way of or due to breach of same by the Company or for reasons specified in subparagraph "d" of Article "4" or subparagraphs "a", "b" and/or "d" of Article "6", Executive's covenants contained herein shall survive the termination or expiration of this Agreement. 6. TERMINATION OF AGREEMENT This Agreement shall, in addition to other provisions affecting termination, terminate on the occurrence of any of the following events: (a) Cessation of the Company's business; (b) Dissolution of the Company; or (c) The voluntary agreement of the parties hereto. 7. NOTICES All notices, requests, demands, deliveries and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed, postage prepaid, registered or certified mail, return receipt requested to the parties at the addresses (or at such other address for a party as shall be specified by like notice) specified on the first page of this Agreement. 8. WAIVER The failure of either party at any time or times to require performances of any provision hereof shall in no manner effect the right at a later time to enforce the same. To be effective, any waiver must be contained in a written instrument signed by the party waiving compliance by the other party of the term or covenant as specified. The waiver by either party of the breach of any term or covenant contained herein, whether by conduct or otherwise, in any one or more instances, shall not be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement. 9. GOVERNING LAW This Agreement shall be governed by the laws of the Sate of Florida, which shall have exclusive jurisdiction over any claims or disputes arising from the subject matter contained herein without regard to any conflict of laws provision. 10. COMPLETE AGREEMENT This Agreement constitutes the complete and exclusive agreement between the parties hereto which supersedes all proposals, oral and written, and all other communications between the parties relating to the subject matter contained herein. 11. SEVERABILITY If any of the provisions of this Agreement are held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 12. EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS This Agreement may not be assigned, transferred or otherwise inure to the benefit of any third person, firm or corporation by operation of law or otherwise, without the written consent by the other party hereto, except as herein specifically provided to the contrary. 13. MODIFICATION This Agreement may only be amended, varied or modified by a written document executed by the parties hereto. 14. FURTHER INSTRUMENTS The parties hereto agree to execute and deliver, or cause to be executed and delivered, such further instruments or documents and take such other action as may be required to effectively carry out the transactions contemplated herein. 15. INDEMNIFICATION In addition to any liability insurance to be provided the Executive from any and all claims, demands, suits, actions or judgments which hereafter may by asserted, instituted or recorded by any person, firm or corporation for the duration of this Agreement and for a six (6) year period following the termination of said Agreement as defined in paragraph 4. The foregoing indemnity shall be enforceable only with respect to claims made against Executive with respect to all expenses, losses, charges and attorney's fees sustained or incurred by the Executive in defending any suit, action or other proceeding brought against the Executive, directly or indirectly, arising out of Executive's employment by Company. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 15th day of June, 2004. EYE CARE INTERNATIONAL, INC. By: /s/ Clark A. Marcus By: /s/ Scott Carson --------------------- ----------------------------- Clark A. Marcus Scott Carson Chief Executive Officer