EMPLOYMENT AGREEMENT
Employment Agreement, dated as of May 7, 1997, between AMERICAN
CONSOLIDATED LABORATORIES, Inc., a Florida Corporation (the "Company") and Bart
C. Gutekunst, a Connecticut resident (the "Executive").
1. EMPLOYMENT DUTIES
a. The Company hereby agrees to employ the Executive as the
Chairman of the Board of Directors 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
approximately one-half of his business time and best efforts
to the performance of his duties under this Agreement.
b. The Executive agrees to serve as a member of the Board of
Directors of the Company without additional compensation.
c. The Company hereby permits the Executive to continue to reside
outside the state of North Carolina.
2. TERM OF EMPLOYMENT
a. The Term of the Executive's employment shall commence on May
7, 1997, (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 4 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. The Executive shall abstain from any vote
of the Board of Directors as an interested party in any
determination by the Board of Directors whether to terminate
this Agreement pursuant to this Section 2 or Section 4 of this
Agreement.
3. COMPENSATION
a. Base Salary. The Executive shall receive a Base Salary of
$60,000 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.
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, stock option 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.
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.
4. 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:
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i. all compensation hereunder in respect to periods
after such termination, resignation or quitting will
terminate upon such termination or resignation;
ii. the Executive shall be deemed to have resigned as
Chairman of the Board of Directors, but termination
shall not constitute resignation as 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.
ii. The Executive shall be deemed to have resigned as
Chairman of the Board of Directors, but termination
shall not constitute resignation as a member of the
Board of Directors.
5. COVENANTS AGAINST COMPETITION, NO SOLICITATION
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
Chairman of the Board of Directors.
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.
6. 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
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delivered to the Company promptly upon the termination of 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.
7. 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 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.
8. RIGHTS AND REMEDIES UPON BREACH
The parties hereto agree and stipulate that the restraints imposed by
Sections 5, 6 and 7 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.
9. 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 5 - 10 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 5 - 10 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.
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10. ENFORCEABILITY IN JURISDICTIONS
The Company and 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 5 - 10 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.
11. 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.
12. 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
With a copy to each of:
Thomas P. Dickerson
Tullis-Dickerson & Co., Inc.
One Greenwich Plaza
Greenwich, CT 06830
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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:
Bart C. Gutekunst
10 Timothy Road
Weston, CT 06883
13. 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.
14. 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 constitute a waiver of the
subsequent 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.
15. 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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16. 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.
17. 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.
18. 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 day and year first above written.
AMERICAN CONSOLIDATED LABORATORIES, INC.
BY: /s/ Joseph A. Arena
Joseph A. Arena
Director and Chief Executive Officer
/s/ Bart C. Gutekust
Bart C. Gutekunst
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