PART II, ITEM 6.
EXHIBIT 10(b)
EMPLOYMENT AGREEMENT
Employment Agreement, dated as of April 11, 1996, between AMERICAN CONSOLIDATED
LABORATORIES, a Florida Corporation (the "Company") and Kenneth C. Kirkham (the
"Executive").
1. EMPLOYMENT DUTIES
(a) The Company hereby agrees to employ the Executive as the Chief Financial
Officer of the Company. The Executive shall carry out those duties,
consistent with the usual and customary duties of the position, as set
forth in the By-Laws and as the Board of Directors of the Company may
determine from time to time. The Executive shall employ his full business
time and best efforts to the performance of his duties under this
Agreement.
2. TERM OF EMPLOYMENT
(a) The Term of the Executive's employment shall commence on April 11, 1996
(the "Initial Employment Date") and will end on the first anniversary of
such date (such term, including any extensions thereof pursuant to this
section 2, being hereafter referred to as the "Term") unless extended or
sooner terminated as herein provided.
(b) Unless earlier terminated pursuant to Section 5 of this Agreement, the term
of this Agreement will be extended automatically in one year increments of
each anniversary of the Initial Employment Date, unless either party to
this agreement gives notice of its intent to terminate this Agreement at
least 90 days prior to the next termination date of this Agreement.
3. COMPENSATION
(c) Base Salary. The Executive shall receive a Base Salary of $75,000 per
annum. The Compensation payable to the Executive shall be payable in
accordance with the payroll policies of the Company as from time to time in
effect, and will be subject to customary withholdings for income taxes,
FICA and similar charges.
(b) Bonus. In addition to a base salary, the Executive will be eligible to
receive a bonus of up to 33.33% of his Base Salary determined by the
Compensation Committee of the Board of Directors based on the Executive's
performance and the Company's performance for the preceding calendar year.
Provided, however, that $12,500 of such Bonus in the first year of
employment only shall be paid if the Executive has a substantial
participation in the receipt by the Company of over $1 million in financing
from third parties.
(c) Participation in Executive Benefit Plans. The Executive will be eligible to
participate in the Company's group life, hospitalization or disability
insurance plan, health program, pension plan or other similar benefit plan
of the Company on the same terms and conditions as are available to the
other executives of the Company.
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(d) Business Expenses. Subject to such policies and procedures as may from time
to time be established by the Board of Directors, the Company will
reimburse the Executive for all reasonable expenses actually incurred or
paid by the Executive in the performance of services under this Agreement,
upon presentation of expense statements or vouchers or such other
supporting information as the Company may reasonably require.
(e) Vacation. The Executive will be entitled to annual paid vacation leave of
three weeks per annum. Unused vacation leave will not accrue.
(f) Relocation expense. The Executive shall be reimbursed up to $4,000 in
relocation expenses, against appropriate documentation.
4. STOCK OPTIONS
(a) Options Grant and Vesting. The Executive will be granted options to
purchase 200,000 shares of Company Common Stock, priced at the average of
the bid and ask price on the NASDAQ system in the ten trading days prior to
the Initial Employment Date. The Company shall, as soon as feasible, issue
the options pursuant to a stock option plan for key executives, officers,
directors and employees of the Company. The options will vest on the
following Anniversary Dates of the Initial Employment Date:
First Anniversary Date 25%
Second Anniversary Date 25%
Third Anniversary Date 25%
Fourth Anniversary Date 25%
(b) Option Term. The options will expire 10 years from the date of grant,
subject to the earlier termination of the Executive for any reason, or upon
the occurrence of a Transaction Event, (which will include a distribution
by Tullis-Dickerson Capital Focus, L.P. of its shares of Common Stock to
its limited partners), with forfeiture of unvested options upon termination
of employment.
(c) Transaction Event. In the event of a Transaction Event, the Executive's
unvested shares shall vest immediately. A "Transaction Event" shall
include:
(i) The sale, exchange or other transfer, directly or indirectly, of
substantially all of the assets of the Company (in one transaction or a series
of related transactions) to a person or entity that is not controlled by the
Company; or,
(ii) a merger or consolidation to which the Company is a party if the
shareholders of the Company immediately prior to the effective
date of such merger or consolidation have "beneficial ownership"
(as defined in Rule 13d-3 under the Exchange Act), immediately
following the effective date of such merger or consolidation of
securities of the surviving corporation, representing less than
50% of the combined voting power of the surviving corporation's
then outstanding securities ordinarily having the right to vote at
elections of Directors.
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(d) Exercise on Termination of Employment. The Executive shall be entitled to
exercise his vested options within 90 days of his death, disability, resignation
or termination of employment. Any unvested options shall expire.
5. TERMINATION
(a) Termination for Cause; Voluntary Resignation by Executive.
"Termination for Cause" will include termination by the Company on any of the
following grounds only:
(i) The Executive's engaging in misconduct materially injurious to
the Company;
(ii) Any uncured breach of this Agreement by the Executive;
(iii) The Executive's conviction of any crime (whether or not
involving the Company) which constitutes a felony in the jurisdiction involved;
(iv) The Executive's failure or refusal to perform his duties as
required by this Agreement.
(b) In the event that the Executive shall be Terminated for Cause or the
Executive resigns or quits:
(i) all compensation hereunder in respect to periods after such
termination, resignation or quitting will terminate upon such termination or
resignation;
(ii) all unvested stock options to the Executive will be forfeited and
the expiration date for all vested stock options granted to the Executive will
be the date 90 days after the date of such termination, resignation, or
quitting;
(iii) The Executive shall cease to be a member of the Board of
Directors.
(c) Termination at the end of the Term or Not for Cause. Upon termination of
the Executive's employment hereunder at the end of the Term, or upon Termination
Not for Cause;
(i) The Executive shall receive an amount equal to the Executive's Base
Salary calculated on the basis of his then prevailing annual salary rate for a
period of six months after such Term or Termination Not for Cause, as the case
may be;
(ii) all unvested stock options granted to the Executive will be
forfeited and the expiration date for all vested stock options granted to the
Executive will be the date 90 days after such Term or Termination Not for Cause.
(iii) The Executive shall cease to be a member of the Board of
Directors.
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6. COVENANTS AGAINST COMPETITION, NO SOLICITATION
(a) During the term of this Agreement, and for a period of one (1) year
following the termination of the Executive's employment hereunder, and in
consideration of the Company's agreement to pay the Executive the salary, bonus
and benefits described in Section 3 of this Agreement, the Executive agrees that
he will not, directly or indirectly, engage or be interested in any business
that engages anywhere in the continental United States in the business of
producing, manufacturing, marketing or distributing contact lenses or the raw
materials from which contact lenses are made or any other product manufactured
by the Company during the Term, except within the scope of his duties as Chief
Financial Officer of the Company.
The Executive will not directly or indirectly for a period of one (1) year
following the termination of the Executive's employment hereunder actively
solicit for employment or hire any person who is employed by the Company.
7. PROPERTY OF THE COMPANY
All memoranda, notes, lists, records and other documents or papers (and all
copies thereof), including such items stored in computer memories, on microfiche
or by any other means, made or compiled by or on behalf of the Executive or made
available to him relating to the Company are and will be the Company's property
and will be delivered to the Company promptly upon the termination for his
employment with the Company or any other time on request and such information
shall be held confidential by the Executive after the termination of his
employment with the Company.
8. CONFIDENTIALITY
Anything herein to the contrary notwithstanding, Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data of the Company not generally known to the public
obtained by Executive during his employment by the Company, and Executive shall
not during his employment by the Company or at any time during the three-year
period after the termination of such employment, communicate or divulge any such
information, knowledge or data to any person, firm or corporation other than the
Company, or persons, firms or corporations designated by the Company.
9. RIGHTS AND REMEDIES UPON BREACH
The parties hereto agree and stipulate that the restraints imposed by Sections
6, 7 and 8 of this Agreement (the "Protective Provisions" shall be enforceable
through injunction as well as an action for damages, that such restraints upon
the Executive are reasonable with regard to their limitations and necessary for
the protection of the Company and its business, and that such restraints will
not be unduly burdensome to the Executive.
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10. SEVERABILITY OF COVENANTS
The parties hereto acknowledge and agree that the Protective Provisions are
reasonable and valid in geographical and temporal scope, and in all other
respects. If any court determines that any of the Protective Provisions, or any
part thereof, are invalid or unenforceable, the remainder of the Protective
Provisions will not thereby be affected and will be given full effect, without
regard to the invalid portions. It is agreed by the Company and the Executive
that if any portion of the covenants set forth in these Sections 6 - 11 are held
to be invalid, arbitrary or against public policy, such portion of such
covenants shall be considered divisible both as to time and geographical area.
The Company and the Executive agree that, if any court of competent jurisdiction
determines the specified time period or the specified geographical area
applicable to these Sections 6 - 11 to be invalid, unreasonable, arbitrary or
against public policy, a lesser time period or geographical area which is
determined to be reasonable, non-arbitrary and not against public policy may be
enforced against the Executive.
11. ENFORCEABILITY IN JURISDICTIONS
The Company and the Executive intend to and hereby confer jurisdiction
to enforce the Protective Provisions upon the courts of any jurisdiction within
the geographical scope of such covenants. If the courts of any one or more of
such jurisdictions hold the Protective Provisions unenforceable by reason of the
breadth of such scope or otherwise, it is the intention of the Company and the
Executive that such determination not bar or in any way affect the Company' s
right to the relief provided in these Sections 6 -11 in the courts of any other
jurisdiction within the geographical scope of such Protective Provisions, as to
breaches of such Protective Provisions in such other respective jurisdictions,
such Protective Provisions as they relate to each jurisdiction being, for this
purpose, severable into diverse and independent covenants.
12. MANAGEMENT OF THE COMPANY
Nothing in this Agreement shall limit the right of the Board of Directors to
manage the business and affairs of the Company or otherwise establish policy for
the benefit of the Company.
13. NOTICE
Any notice or other communication required or permitted to be given hereunder
shall be in writing and shall be delivered personally or sent by certified,
registered, or express mail, postage prepaid. Any such notice will be deemed
given when so delivered personally, or if mailed, two days after the date of
deposit in the United States mails, as follows:
If to the Company, to:
American Consolidated Laboratories
1640 North Market Street
Raleigh, North Carolina 27609
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With a copy to each of:
Thomas P. Dickerson
Tulllis-Dickerson & Co., Inc.
One Greenwich Plaza
Greenwich, CT 06830
Bonnie Pinzel, Esq.
Schifino & Fleischer
One Tampa City Center
201 North Franklin St.
Tampa, FL 33602-5174
Thomas Kruger, Esq.
Battle, Fowler LLP
75 East 55th St.
New York, NY 10022
If to the Executive, to:
Kenneth C. Kirkham
Carolina Contact Lens
1640 North Market Drive
Raleigh, North Carolina 27609
14. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties with
respect to the subject matter of this Agreement and supersedes all prior
agreements, written or oral, with respect thereto.
15. WAIVERS AND AMENDMENTS; REMEDIES
This Agreement may be amended, superseded, canceled, renewed, or extended and
the terms of this Agreement may be waived, only by a written instrument signed
by the parties, or, in the case of a waiver, by the party waiving compliance. No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof. Nor shall any waiver on the part of
any party of any such right, power or privilege, nor any single or partial
exercise of any such right, power or privilege. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity.
16. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
North Carolina (other than any North Carolina law respecting conflict-of-laws
that would make the laws of any other jurisdiction applicable).
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17. ASSIGNMENT
This Agreement, and the Executive's rights and obligations hereunder, are
personal in nature and may not be assigned by the Executive. The Company may
assign this Agreement and its rights, together with its obligation, hereunder in
connection with any sale, transfer or other disposition of all or substantially
all of its assets or business, whether by merger, consolidation or otherwise.
18. COUNTERPARTS
This Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original but all such
counterparts together shall constitute one and the same instrument.
19. HEADINGS
The headings in this Agreement are for reference only, and shall not affect the
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the 25th day of April 1996.
AMERICAN CONSOLIDATED LABORATORIES
By /s/ Thomas P. Dickerson
Thomas P. Dickerson
Chairman and Director
/s/ Kenneth C. Kirkham
Kenneth C. Kirkham
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