<PAGE>
Exhibit 10.38
MATERIAL IN THIS DOCUMENT
HAS BEEN OMITTED PURSUANT
TO A CONFIDENTIAL TREATMENT REQUEST
FIFTH AMENDMENT
TO
LICENSED DEPARTMENT AGREEMENT
This
Fifth Amendment To Licensed Department Agreement (the "Amendment"),
is
entered into by and between J. C. Penney Corporation, Inc., a
Delaware
corporation having its principal place of business at 6501 Legacy
Drive, Piano,
Texas 75024-3698 (hereinafter "Penney"), and U. S. Vision, Inc., a
Delaware
corporation, having its principal place of business at Glen Oaks
Industrial
Park, P. 0. Box 124, Glendora, New Jersey (hereinafter
"Operator").
WHEREAS, Penney and Operator have entered into a Licensed
Department
Agreement, dated February 1, 1995 (the "Agreement");
WHEREAS, Penney and Operator amended the Agreement by an
Amendment
("Amendment Number 1") to Licensed Department Agreement, dated
December 18,
1996, by an Amendment No. 2 ("Amendment Number 2") to License
Department
Agreement, dated April 13,1998, by a Third Amendment to License
Agreement
("Amendment Number 3"), dated as of September 30, 2002, and by a
Fourth
Amendment to License Agreement ("Amendment Number 4"), dated as of
May 22, 2003;
WHEREAS, Penney and Operator temporarily supplemented the Agreement
by a
letter, dated December 1997, and that supplemental letter is no
longer in
effect; and
WHEREAS, in accordance with the terms of the Agreement, the parties
desire
to amend certain terms and provisions of the Agreement relating to
the operation
of a "JCPenney Optical" website to reflect the current agreement of
the parties;
WHEREAS, capitalized terms not otherwise defined in this Amendment
are used
as defined in the Agreement; and
NOW
THEREFORE, in consideration of the premises, and for other good
and
valuable consideration. the receipt and sufficiency of which is
hereby
acknowledged, Penney and Operator hereby agree as follows:
Article I
The
provisions of Amendment Number 2 and Article VIII of Amendment
Number 3
are hereby amended and restated to provide as follows:
1.
Optical Website. Operator shall be responsible, at its sole
expense, for
the maintenance (during the term of the Agreement) of valid domain
name
registrations for, and the
<PAGE>
construction, maintenance, site hosting, content and operation of a
website
utilizing the tradename "JCPenney Optical" (the "Optical Website").
The domain
names for the Optical Website shall be www.jcpenneyoptical.com,
www.jcpeyes.com
or, subject to Penney's prior approval, any other domain name
containing
Trademarks of Penney or a Trademark used by Operator in connection
with the
advertising and sale of Merchandise under the Agreement. The
Optical Website
shall be considered a "Licensed Department" under the Agreement,
except where
the context in which the defined term "Licensed Department" is used
clearly
relates only to a physical in-store location.
2.
Compliance with Laws. Operator shall comply with all applicable
laws and
regulations, including without limitation all applicable laws and
regulations
pertaining to data protection, and shall not breach, infringe or
encroach upon
the rights of third parties in connection with its registration,
construction,
maintenance, site hosting, content and operation of the Optical
Website. For the
avoidance of doubt, Operator's obligations under this provision
shall be in
addition to those imposed by section 4 of the Agreement and not in
lieu thereof.
3.
Penney Website Link. Penney shall provide a link between its
website at
www.jcpenney.com or any successor website and the Optical Website.
For the
avoidance of doubt, it is agreed that this provision shall not
require Penney to
maintain the www.icpenney.com website or any successor website. It
is further
agreed that Penney may disable the link to the Optical Website in
the event
system issues reasonably believed to be associated with the link
arise, provided
that Penney promptly reports the disabling to Operator. Upon
request, Operator
shall furnish a report(s) to Penney regarding the number of
customers and
potential customers that visit the Optical Website.
4.
Termination. Upon the expiration or termination of the
Agreement,
Operator shall cease operation of the Optical Website and shall
transfer and
assign to Penney the domain name registration
www.jcpenneyoptical.com,
www.jcpeyes.com and any other domain name containing Trademarks of
Penney.
5.
Content. All content of the Optical Website shall be consistent
with
Penney's advertising practices and procedures. Operator shall
furnish Penney an
opportunity to review and comment on all Optical Website content.
In the event
that Penney notifies Operator that certain content is not
consistent with
Penney's advertising practices and procedures, Operator shall have
48 hours
within which to either remove the offending content or modify the
content to
comply with Penney's advertising practices and procedures.
6.
Updates. The Merchandise listed on the Optical Website and the
Optical
Website itself shall be updated by Operator at least annually.
7.
Confidentiality. All information, including without limitation,
names,
addresses, email addresses, and credit and debit card account
numbers, gathered
from the Optical Website shall be subject to the provisions of
section 15 of the
Agreement relating to the ownership, confidentiality and use of
customer names
and other information related to the operation of the Licensed
Departments. Upon
Penney's request or the
