EXHIBIT 10.44
EMPLOYMENT AGREEMENT
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THIS AGREEMENT made and is effective this 10th day of November, 1998 by
and between LASERSIGHT INCORPORATED, a Delaware corporation (the "Corporation"),
whose address for notice purposes is 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx Xxxx, Xxxxxxx 00000 and XXXXXXX XXXXXX (the "Employee") whose address for
notice purposes is 00000 Xxxxxxxx Xxx, Xxxxx, Xxxxxxx 00000. In consideration of
the employment of Employee, the compensation to be paid hereunder and other good
and valuable consideration, Corporation agrees to hire Employee and Employee
agrees to work for Corporation upon the following terms and conditions:
PARAGRAPH 1: DUTIES OF EMPLOYEE
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1.01 Acceptance of Employment. Employee is employed by Corporation on a
full-time basis to render services on behalf of Corporation as its Senior Vice
President and Chief Technical Officer. Employee shall provide services in the
areas of:
(a) Regulatory Affairs; with the responsibility and authority
to assure the Corporation's conformance with U.S. and international government
health authority regulations, as relating to the manufacture, sale and
distribution of the Corporation's products.
(b) Quality Assurance; with the responsibility and authority
for assuring Corporation compliance with U.S. and international quality system
requirements for the Corporation's medical manufacturing facilities;
(c) Clinical Research; with the responsibility and authority
for conducting clinical trials research for the purpose of supporting product
approval applications for submission to government health authorities.
(d) Employee shall, at the request of the Corporation's Chief
Executive Officer (the "CEO"), participate in meetings of the Corporations'
Board of Directors by providing such Board with information regarding the
Corporation's regulatory affairs, quality assurance and clinical research
activities as described in this Section 1.01. In addition, upon receipt of
approval from the Corporation's Board of Directors to the formation of a
Regulatory Compliance Committee, the Employee shall serve as a member of such
committee during the term of this Agreement.
Employee hereby accepts such full-time employment and shall devote the necessary
skill, energy and attention to the business of the Corporation, and shall
perform his duties, for the purpose of advancing the business of the
Corporation. Employee shall report to the CEO.
1.02 Limitation on Authority. Without the consent of the CEO, Employee
shall have no actual, apparent, express or implied authority to:
(a) Pledge the credit of Corporation or any of its other employees;
(b) Release or discharge any debt due Corporation unless
Corporation has received the full amount thereof;
(c) Sell, mortgage, transfer or otherwise dispose of any assets of
Corporation; or
(d) Perform, on behalf of the Corporation, any other action
that is outside the scope of Employee's duties described in Section 1.01.
PARAGRAPH 2: COMPENSATION
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2.01 Salary. Corporation shall pay to Employee as compensation for
Employee's services an annual base salary of $150,000.00 ("Employee's Salary"),
payable biweekly. Employee shall receive a $20,000.00 bonus that will be paid in
connection with the Corporation's first regularly scheduled payroll date
following the date of this Agreement. All salary payments shall be subject to
withholding, social security and other applicable taxes.
2.02 Stock Options.
(a) Upon the first day of employment under this Agreement,
employee will be granted stock options (the "Options") pursuant to the
Corporation's Amended and Restated 1996 Equity Incentive Plan, as amended (the
"Plan"), for the acquisition of 75,000 shares of the Corporation's common stock
with such shares to be registered and freely tradable on NASDAQ immediately upon
exercise of the Options. As more fully set forth in the Award Agreement attached
hereto as Exhibit "A", the Options will be granted at a price equal to the
NASDAQ closing price on the effective date of this Agreement. 40,000 of the
options shall be exercisable on or after January 1, 1999 and 35,000 of the
options shall be exercisable on or after January 1, 2000.
(b) In the event of a Change of Control (as defined in the
Plan) all of the Options will immediately vest and be exercisable upon the date
of such Change of Control.
(c) If this Agreement is terminated without Cause (as defined
in Paragraph 5), then the Options which have not previously vested will
terminate and be of no further force and effect and the Employee will have
twelve (12) months immediately after the date of such termination to exercise
any Options which had previously vested. If the Options previously vested are
not exercised on or before twelve (12) months immediately following the date of
such termination, then such Options will terminate and be of no further force
and effect.
(d) If this Agreement is terminated for Cause (as defined in
Paragraph 5), then the Options not previously vested will terminate and be of no
further force and effect and the Employee will have thirty (30) days immediately
after the date of such termination to exercise any Options which had previously
vested. If the Options previously vested are not exercised on or before the 30th
day immediately following the date of termination, then such Options will
terminate and be of no further force and effect.
PARAGRAPH 3: BENEFITS
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Upon commencement of full-time employment with the Corporation,
Corporation shall pay for and provide Employee with the fringe benefits, at a
minimum level equal to other of the Corporation's employees, including, but not
limited to, the following:
3.01 Medical Insurance Policy. Corporation shall purchase at its
expense a major non-HMO medical insurance policy insuring Employee and his
dependents, which policy shall be reasonably acceptable to Employee, provided
that if the Corporation does not provide this type of medical insurance for any
other Corporation employee, then at the Employee's option (i) the Corporation
will provide Employee with the health insurance provided to other Corporation
employees, or (ii) Employee may elect not to receive health insurance coverage
from the Corporation and in such event the Corporation shall pay the Employee in
cash on a monthly basis up to $450.00 as reimbursement for Employee's expenses
incurred in connection with the purchase of health insurance for Employee and
his dependents.
3.02 Life Insurance. Corporation shall provide life insurance covering
Employee's life in an amount consistent with other Corporation employees, but in
no event less than two and one-half (2 1/2) times Employee's salary, subject to
a maximum of $300,000. Benefits under such policy will be payable to the
beneficiary or beneficiaries designated in writing by Employee.
3.03 Vacation and Time Off. Employee shall be entitled to three weeks
of paid vacation annually.
3.04 Death During Employment. If the Employee dies during the
Employment Term, the Corporation shall pay to the estate of Employee the
compensation that would otherwise be payable to the Employee through the last
date on which Employee worked.
3.05 Automobile. Employee shall receive from the Corporation a monthly
car allowance payment of $650.00 per month.
3.06 401(k) Plan. Upon meeting eligibility requirements, Employee shall
participate in the Corporation's qualified pension plans, including any profit
sharing and 401(k) plan.
3.07 Disability Insurance. Corporation shall purchase at its expense, a
long term disability insurance policy covering Employee which shall provide the
same coverage as is supplied to other employees of the Corporation.
PARAGRAPH 4: TERM
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The Employment Term shall be as of the date of execution of this
Agreement and it shall remain effective and continue in force and effect for a
period of two years and thereafter, at the end of the second year and each
subsequent year, shall be automatically renewed for an additional year, unless
either party gives written notice of its intent not to renew this Agreement at
least 60 days prior to the end of the then current term. Notwithstanding the
foregoing, Employee's salary specified above shall only be effective through the
end of the first year of employment, and the same may be renegotiated in the
last month of each year of employment for the following year until this
Agreement is terminated. Employee's salary shall not be reduced without the
written consent of Employee.
PARAGRAPH 5: TERMINATION OF EMPLOYMENT
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Corporation may terminate this Agreement at any time for "Cause", which
shall mean situations where the Employee does not satisfactorily render services
to the Corporation due to intoxication from or habitual use of alcohol or
illegal drugs, gross neglect of Employee's duties which are within Employee's
control (which is not cured within ten days after written notice of such neglect
is delivered to Employee), personal dishonesty or conviction of a felony. Such
termination shall be effective upon the delivery of a written notice thereof to
Employee or at such later time as may be designated in said notice, and Employee
shall vacate the offices of Corporation on or before such effective date.
Employee may terminate this Agreement only upon the Corporation's bankruptcy,
insolvency or dissolution, or upon the Corporation's breach of the terms of this
Agreement. Employee or Corporation may terminate this Agreement without cause
upon 60 days prior written notice. In the event Corporation terminates this
Agreement for any reason (other than for Cause or non-renewal pursuant to
Paragraph 4), Corporation shall be obligated to pay Employee (in accordance with
Corporation's standard payroll practices) a severance allowance equal to one (1)
years salary and health insurance benefits, less all amounts required to be
withheld and deducted. In addition, if allowed under the terms of Corporation's
then effective group life insurance and group disability insurance plans,
Employee shall continue to receive Corporation's standard life insurance and
disability insurance benefits during the one year severance period.
PARAGRAPH 6: REIMBURSABLE EXPENSES
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Except as herein otherwise provided, Corporation will reimburse
Employee, and Employee is entitled to charge to Corporation, all expenses
incurred by Employee, in and about the regular course of Corporation's business.
Such expenses shall include, but not be limited to:
6.01 Travel. Employee's necessary travel, hotel and entertainment
expenses incurred in connection with overnight, out-of-town trips for
educational, professional or other related meetings or in connection with other
events that contribute to the benefit of Corporation which are paid by Employee
and are in accordance with established corporate policy, or as specifically
authorized by the Board of Directors. If Employee travels on any international
flights, Employee shall fly and be reimbursed for Business Class seating.
6.02 Moving Expenses. The actual costs of moving the Employee's
principal residence, furniture and personal belongings from Tampa, Florida to
Orlando, Florida not to exceed $20,000.00.
6.03 Interim Living Expenses. For a period ending on or before November
30, 1999, the Corporation will reimburse Employee for Employee's "interim living
expenses" associated with Employee's relocating activities. These interim living
expenses will include, but not be limited to, the cost of any transportation,
apartment, utilities, electric and telephone incurred by Employee while
searching for a permanent residence. In no event will the Corporation's
obligations under this Section 6.03 exceed $25,000.00 without the Corporation's
prior written consent.
6.04 Professional Fees. License fees, membership dues and professional
organizations and subscriptions to professional journals that are approved as
part of the Corporation's annual budget.
6.05 Cellular Telephone Expenses. Cellular telephone expenses incurred
by Employee in connection with Employee's duties as an Employee of the
Corporation.
PARAGRAPH 7: INVENTIONS/INDEMNIFICATION
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7.01 Inventions. The parties agree that any invention in the field of
ophthalmology and/or refractive surgery invented by Employee during the term of
this Agreement shall become the sole property of Corporation in exchange for
consideration paid to Employee in an amount to be reasonably agreed upon by the
parties based on the market value of such invention and other consideration paid
to employees for inventions developed by such employees.
7.02 Indemnification. To the fullest extent permitted by law, the
Corporation's Certificate of Incorporation and the Corporation's bylaws the
Corporation hereby agrees to protect, defend, indemnify and hold Employee
harmless from any and all liability, loss or damages (including, but not limited
to, attorneys fees and costs of settlement, trial and appeal) which Employee may
suffer as a result of any claims, demands, allegations of fraud or criminal
wrongdoing (provided Employee had either reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful),
costs or judgments against Employee predicated upon or arising out of Employee's
services rendered by Employee to the Corporation. This indemnification
obligation shall survive any termination of this Agreement.
PARAGRAPH 8: NON-COMPETTION/CONFIDENTIALITY
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8.01 Restriction Against Competition. The Employee agrees that while he
is employed by the Corporation pursuant to this Agreement, and for each month
following the effective date of termination of this Agreement for which the
Corporation pays to Employee a sum equivalent to one month of Employee's Salary
(collectively, the "Restricted Period"), Employee shall not, directly or
indirectly, as a partner, officer, director, agent, consultant or otherwise:
(a) engage in any business that competes with the business of
the Corporation (herein to mean all subsidiaries, divisions, and assigns of the
Corporation) as conducted by the Corporation as of the effective date of the
termination of this Agreement in any state where the Corporation is conducting
business;
(b) purposefully interfere or attempt to interfere with any of
the Corporation's contracts or business relationships or advantages existing and
in effect as of the effective date of termination of this Agreement;
(c) solicit for employment, either directly or indirectly, for
himself or for another, any of the technical or professional employed by the
Corporation, provided that with regard to the period after the termination of
this Agreement such restriction shall apply only to such employees employed by
the Corporation during the six (6) months prior to the expiration of the
Restricted Period;
(d) purposefully interfere with the business relationship of
or solicit the business or orders of (a) customers of the Corporation, provided
that with regard to the period after the termination of this Agreement such
restriction shall apply only to such parties who were customers during the 60
days prior to the expiration of the Restricted Period; or (b) a prospective or
potential customer of the Corporation, such restriction shall apply only to
prospective or potential customers (i) to whom the Corporation has submitted a
formal quotation within the immediately preceding one year period, or (ii) that
have been previously listed or identified in writing by the Corporation as a
business prospect at any time during the immediately preceding one year period.
The parties agree that if the Employee commits a
breach of the covenants of Section 8.01 of this Agreement, the Corporation
shall have the right to seek and obtain all appropriate injunctive and
other equitable remedies therefor, in addition to any other rights and
remedies that may be available at law, it being acknowledged and agreed that
such breach would cause irreparable injury to the parties and that money
damages would not provide adequate remedy therefor.
8.02 Protection of Confidential Information.
(a) Confidentiality. During the term of this Agreement and for
a period of twelve (12) months after any termination or expiration thereof,
Employee agrees that he will not use for himself or others or divulge or convey
to others any secrets or confidential information, knowledge or data of the
Corporation obtained by the Employee during his employment with the Corporation.
The term "secret or confidential information, knowledge or data" shall not be
deemed to include information that is published, information that is generally
known throughout the industry or which generally is available to the industry
without restriction through no fault of the Employee.
(b) Injunctive Relief. The Employee agrees that the
Corporation's remedies at law for any breach or threat of breach by him of the
provisions of paragraph (a) of this Section 8.02 will be inadequate, and that
the Corporation shall be entitled to an injunction to prevent breaches of the
provision of paragraph (a) of this Section 8.02 and to enforce specifically the
terms and provisions thereof, in addition to any other remedy to which the
Corporation may be entitled to by law or equity.
(c) Return of Documents and Other Property. Upon termination
of the Employee's employment with the Corporation, or anytime upon the request
of the Corporation, the Employee shall deliver to the Corporation (i) all
documents and materials containing secret or confidential information, knowledge
or data relating to the Corporation's business and affairs, and (ii) all
documents, materials and other property belonging to the Corporation, which in
either case are in the possession or under the control of the Employee.
PARAGRAPH 9: GENERAL PROVISIONS
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9.01 Attorney's Fees. In connection with any litigation, including
appellate proceedings arising out of this Agreement, the prevailing party shall
be entitled to recover costs and attorneys' fees. Costs and attorneys' fees
shall include any and all attorneys' fees incurred in preparation for trial, a
trial, on appeal or in bankruptcy proceedings and shall also include paralegal
expenses and all reasonable travel, copying and transmission costs of the
attorneys, expert witness fees, the costs of investigation and proof of facts,
and the costs of any sales, services, value added or similar tax imposed upon
amounts relating to any services or costs described in this sentence.
9.02 No Waiver. The failure of any party at any time to require
performance by another party of any provision hereof shall not affect in any way
the full right to require such performance at any time thereafter; nor shall the
waiver by any party of a breach of any provision hereof be taken or held to be a
waiver of the provision itself.
9.03 Captions. The headings contained herein are merely for the
convenience of the parties, and the context of such paragraphs shall control the
respective meanings. The masculine, feminine and neuter general and the singular
and plural shall each be deemed to include the other whenever the context so
indicates.
9.04 Invalid Provision. In case any one or more provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had not been
contained herein.
9.05 Modifications. This Agreement may be modified or amended only by
the written consent of the parties hereto.
9.06 Construction and Venue. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida. Any action, by any
party, to enforce or interpret any terms of this Agreement, or any dispute
arising out of or related to this Agreement, shall be exclusively commenced,
brought before, and decided by the Circuit Court for Hillsborough County,
Florida, in the case of state actions or the Federal District Court for the
Middle District of Florida, in the case of Federal actions. The parties hereby
consent and agree to the above-described venue and jurisdiction of such courts
and actions.
9.07 Entire Agreement. This writing contains the entire agreement of
the parties, and no representations or agreements, oral or otherwise, between
the parties prior or subsequent to the signing of this Agreement not embodied
herein shall be of any force and effect.
9.08 Interpretation - No Presumption. It is acknowledged by the parties
that this Agreement is the result of negotiated suggestions of all parties, and
therefore, no presumptions shall arise favoring any party by virtue of the
authorship of any of the provisions herein or the modification, addition or
deletion of provisions in prior drafts hereof.
9.09 Notices. Any notice or other communication to any party shall be
sent by certified or registered mail or via receipted express mail, to such
party's respective address set forth in the first paragraph of this Agreement,
or to such other address as such party may designated from time to time by
written notice to the other.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed the day and year first above written.
LASERSIGHT INCORPORATED
a Delaware corporation
By: /s/Xxxxxxx X. Xxxxxx
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/s/Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
