EXHIBIT 10.11
000 XXXXXXXXX XXXXX
XXXXXXX, XXXXXXX X0X 0X0
(000)000-0000
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of this 1st day of March, 2000,
BETWEEN:
TLC LASER EYE CENTERS INC., a corporation incorporated under
the laws of the Province of Ontario
(the "Corporation")
- and -
XXXXX XXXXXXX, of the City of Toronto, in the Province of
Ontario
(the "Employee")
RECITAL:
A. The Corporation and the Employee wish to enter into this Agreement to
set forth the rights and obligations of each of them as regards the
Employee's employment with the Corporation;
NOW THEREFORE in consideration of the mutual covenants and
agreements (including, without limitation, the increased salary described in
section 5 hereof) contained in this Agreement and other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the Corporation and the Employee agree as follows:
1. DEFINITIONS
1.1. In this Agreement,
1.1.1. "AFFILIATE" has the meaning attributed to such term in
the Business Corporations Act (Ontario) as the same may be
amended from time to time and any successor legislation
thereto;
1.1.2. "AGREEMENT" means this agreement and all schedules
attached to this agreement, in each case as they may be
amended or supplemented from time
-2-
to time, and the expressions "hereof', "herein", "hereto",
"hereunder", "hereby" and similar expressions refer to this
agreement and unless otherwise indicated, references to
sections are to sections in this agreement;
1.1.3. "BASIC SALARY" and "SALARY" have the respective
meanings attributed to such terms in section 5.1;
1.1.4. "BENEFITS" has the meaning attributed to such term in
section 5.3;
1.1.5. "BUSINESS DAY" means any day, other than Saturday,
Sunday or any statutory holiday in the Province of Ontario;
1.1.6. "CHANGE OF CONTROL" for the purposes of this Agreement,
shall be deemed to have occurred when:
1.1.6.1. any Person acquires or becomes the
beneficial owner of, or a combination of Persons
acting jointly and in concert acquires or becomes the
beneficial owner of, directly or indirectly, more
than 40% of the voting securities of the Corporation,
whether through the acquisition of previously issued
and outstanding voting securities, or of voting
securities that have not been previously issued, or
any combination thereof, or any other transaction
having a similar effect;
1.1.6.2. the Corporation amalgamates with one or more
corporations other than a Subsidiary;
1.1.6.3. the Corporation sells, leases or otherwise
disposes of all or substantially all of its assets
and undertaking, whether pursuant to one or more
transactions;
1.1.6.4. any Person not Part of existing management
of the Corporation or any Person not controlled by
the Corporation or by any Affiliate enters into any
arrangement to provide management services to
-3-
the Corporation which results in either (i) the
termination by the Corporation of the employment of
any two of the Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, or
General Counsel for any reason other than Just Cause;
or (ii) the termination by the Corporation for any
reason other than Just Cause of the employment of all
such senior executive personnel within six months of
the date that such arrangement is entered into for
any reason other than Just Cause; or
1.1.6.5. the Corporation enters into any transaction
or arrangement which would have the same or similar
effect as the transactions referred to in sections
1.1.6.1, 1.1.6.2, 1.1.6.3 or 1.1.6.4 above,
1.1.7. "CONFIDENTIAL INFORMATION" means all confidential or
proprietary information, intellectual property (including
trade secrets) and confidential facts relating to the business
or affairs of the Corporation or any of its Subsidiaries;
1.1.8. "DISABILITY" means the mental or physical state of the
Employee such that the Employee has been unable as a result of
illness, disease, mental or physical disability or similar
cause to fulfil his obligations under this Agreement either
for any consecutive 6 month period or for any period of 12
months (whether or not consecutive) in any consecutive 24
month period;
1.1.9. "EMPLOYMENT PERIOD" has the meaning attributed to such
term in section 4;
1.1.10. "ESA" means the Employment Standards Act (Ontario) as
the same may be amended from time to time and any successor
legislation thereto;
1.1.11. "GOOD REASON" means:
1.1.11.1. without the express Written consent of the
Employee, any change or series of changes in the
responsibilities or status of the Employee with the
Corporation, such that immediately after such change
-4-
or series of changes the responsibilities and status
of the Employee, taken as a whole, and taking into
account the size and complexity of the business of
the Corporation and its Subsidiaries and Affiliates
are not at least substantially equivalent to those
assigned to him immediately prior to such change or
series of changes, except in connection with the
termination of the Employee's employment by the
Corporation for Just Cause or on death, Disability or
Retirement or a voluntary resignation by the Employee
other than a resignation for Good Reason;
1.1.11.2. a reduction by the Corporation in the
Employee's Basic Salary as in effect on the date
hereof or as the same may be increased from time to
time;
1.1.11.3. the taking of any action by the Corporation
which would materially adversely affect the
Employee's participation in, or materially reduce the
Employee's Benefits or bonus remuneration and other
similar plans in which the Employee is participating
at the date hereof (or such other package of plans as
may be implemented after the date hereof providing
the Employee with substantially similar benefits), or
the taking of any action by the Corporation which
would deprive the Employee of any material fringe
benefit enjoyed by him at the date hereof;
1.1.11.4. the requirement that the Employee be based
anywhere other than the Corporation's principal
executive offices except for required travel on the
Corporation's business to an extent substantially
consistent with the Employee's present travel
obligations, or in the event the Employee consents to
any such relocation, the failure by the Corporation
to pay (or reimburse the Employee for) all reasonable
moving expenses incurred by the Employee or to
indemnify the Employee against any excess in (A) the
cost of a principal residence in the new location
which is comparable to the Employee's principal
residence at the time of the
-5-
relocation, over (B) the amount realized by the
Employee upon the sale of his principal residence at
the time of the relocation; or
any reason which would be considered to amount to constructive
dismissal by a court of competent jurisdiction.
1.1.12. "JUST CAUSE" means the willful failure of the Employee
to properly carry out his duties after notice by the
Corporation of the failure to do so and an opportunity for the
Employee to correct the same within a reasonable time from the
date of receipt of such notice, or theft, fraud, dishonesty or
misconduct by the Employee involving the property, business or
affairs of the Corporation or its Subsidiaries or the carrying
out of the Employee's duties;
1.1.13. "PERSON" means any individual, partnership, limited
partnership, joint venture, syndicate, sole proprietorship,
company or corporation with or without share capital,
unincorporated association, trust, trustee, executor,
administrator or other legal personal representative,
regulatory body or agency, government or governmental agency,
authority or entity however designated or constituted;
1.1.14. "RESTRICTED PERIOD" means, as the case may be, (i) the
notice period provided for in section 8; or (ii) one year if
the employment of the Employee is terminated pursuant to
section 10.2 or 10.3;
1.1.15. "RETIREMENT" means Retirement in accordance with the
Corporation's retirement policy;
1.1.16. "SUBSIDIARIES" has the meaning attributed to such term
by the Business Corporations Act (Ontario) as the same may be
amended from time to time and any successor legislation
thereto;
1.1.17. "YEAR OF EMPLOYMENT" means any 12 month period
commencing on July 13, 1998 or on any anniversary of such
date, provided that for the
-6-
purposes of this Agreement, the "First Year of Employment"
shall be deemed to commence on July 13, 1998 and to end on
July 12, 1999.
2. EMPLOYMENT OF THE EMPLOYEE
The Corporation shall employ the Employee, and the Employee
shall serve the Corporation, in the position of General Counsel on the
conditions and for the remuneration hereinafter set out. In such position, the
Employee shall perform or fulfil such duties and responsibilities as the
Corporation may designate from time to time and as are reasonably consistent
with the position of General Counsel. The Employee shall report to the Chief
Executive Officer of the Corporation.
3. PERFORMANCE OF DUTIES
During the Employment Period, the Employee shall faithfully,
honestly and diligently serve the Corporation and its Subsidiaries as
contemplated above. The Employee shall (except in the case of illness or
accident) devote all of his working time and attention to his employment
hereunder and shall use his best efforts to promote the interests of the
Corporation,
4. EMPLOYMENT PERIOD
The Employee's employment under this Agreement shall, subject
to section 8 and section 10, be for an indefinite term. Accordingly, the
Corporation shall employ the Employee and the Employee shall serve the
Corporation as an employee in accordance with this Agreement for the period
beginning on the date hereof and ending on the effective date the employment of
the Employee under this Agreement is terminated in accordance with section 8.2
or section 10 (the "Employment Period").
5. REMUNERATION
5.1. BASIC REMUNERATION. The Corporation shall pay the Employee a gross
Salary in respect of each Year of Employment in the Employment Period
(before deduction for income taxes and other required deductions, such
as C.P.P. and E.I. contributions but
-7-
excluding the Benefits paid by the Corporation as provided in the TLC
Benefit Plan) of $175,000 (the "Basic Salary"), plus a $7,500 annual
Car Allowance and a 5% annual Retirement Allowance, payable in equal
installments on every second Friday in each month during such year,
with a pro-rata adjustment in the Basic Salary in the event that such
year begins or terminates on a day other than the second Friday in each
month, the first payment to be made on March 3, 2000. The Basic Salary
shall, in the sole and absolute discretion of the board of directors of
the Corporation, be subject to an increase on the basis of an annual
review (September 1st). The Basic Salary shall be prorated in respect
of the First Year of employment such that the employee shall be
entitled and the Corporation shall be required to pay in respect of
each such year only that proportion of the Basic Salary that the number
of days in the First Year of Employment is to 365.
5.2. BONUS REMUNERATION. The Executive shall, in respect of each Year
of Employment during the Employment Period, receive such bonus
remuneration, as outlined in Schedule 5.2.
5.3. STOCK OPTIONS. The Employee shall, in respect of each Year of
Employment during the Employment Period, receive such stock options, if
any, as the board of directors of the Corporation, in its sole
discretion may, pursuant to the terms of the Corporation's stock option
plan, authorize.
5.4. BENEFITS. The Corporation shall provide to the Employee, in
addition to Salary and stock options, if any, the benefits (the
"Benefits") described in the TLC Benefit Plan, such Benefits to be
provided in accordance with and subject to the terms and conditions of
the applicable plan relating thereto in effect from time to time.
5.5. PRO-RATA ENTITLEMENT IN THE EVENT OF TERMINATION. If the
Employee's employment is terminated pursuant to section 8 or section 10
or if the Employee dies during the Employment Period, the Employee
shall be entitled to receive in respect of his entitlement to Salary,
and the Corporation shall be required to pay in respect thereof, only
that proportion of the Salary in respect of the Year of Employment in
which the effective date of the termination of employment or the date
of death occurs that the number of days
-8-
elapsed from the commencement of such Year of Employment to the
effective date of termination or the date of death is to 365.
6. EXPENSES
Subject to the terms of the Corporation's expense policy, the
Corporation shall pay or reimburse the Employee for all travel and out-of-pocket
expenses reasonably incurred or paid by the Employee in the performance of his
duties and responsibilities upon presentation of expense statements or receipts
or such other supporting documentation as the Corporation may reasonably
require.
7. VACATION
The Employee shall be entitled during each Year of Employment
during the Employment Period to vacation with pay of four weeks. Vacation shall
be taken by the Employee at such time as may be acceptable to the Corporation
having regard to its operations. Except with the prior written consent of the
Chief Executive Officer (i) no more than two weeks of vacation shall be taken
consecutively; and (ii) the vacation entitlement earned in a Year of Employment
cannot be carried forward to a subsequent Year of Employment. Notwithstanding
the foregoing, in the event that the Employee's employment is terminated
pursuant to section 8 or section 10, the Employee shall not be entitled to
receive any payment in lieu of any vacation to which he was entitled and which
had not already been taken by him except to the extent, if any, of the payments
in respect of vacation pay required by the Employment Standards Act.
8. TERMINATION
8.1. NOTICE. The Employee's employment may, subject to section 10 and
section 11 hereof, be terminated at any time:
8.1.1. by the Corporation without prior notice and without
further obligations to the Employee for reasons of Just Cause;
-9-
8.1.2. by the Corporation for any reason other than Just
Cause, including the occurrence of Disability, on six months
prior written notice to the Employee provided that if the
Employee is entitled under the ESA to a longer period of
notice than that prescribed above, the notice to be given by
the Corporation under this section 8.1.2 shall be that minimum
period of notice which is required under the ESA and no more;
or
8.1.3. by the Employee on one month's notice to the
Corporation.
The Employee's employment shall be automatically terminated in the event of his
death.
8.2. EFFECTIVE DATE. The effective date on which the Employee's
employment shall be terminated shall be:
8.2.1. in the case of termination under section 8.1.1, the day
the Employee is deemed, under section 18, to have received
notice from the Corporation of such termination;
8.2.2. in the case of termination under section 8.1.2 or
section 8.1.3, the last day of the minimum period referred to
therein; and
8.2.3. in the event of the death of the Employee, on the date
of his death.
Notwithstanding the foregoing, where the Corporation is giving
or has given the notice pursuant to section 8.1.2 above, the Corporation shall
have the right, at any time prior to the end of the Employment Period and by
giving notice to the Employee to that effect (a "Stop Work Notice"), to require
that the Employee cease to perform his duties and responsibilities and cease
attending the Corporation's premises immediately upon the giving of the Stop
Work Notice. If a Stop Work Notice is given, the Corporation shall continue to
pay the Employee to the end of the Employment Period. For that purpose, in
calculating the Employee's entitlement to Salary, bonus, and to Benefits under
any fund, plan or arrangement, if any, the Employee shall be considered to have
been actively employed by the Corporation to the end of the Employment Period.
Notwithstanding the foregoing, if the employment of the Employee is terminated
-10-
because of the occurrence of Disability, the Employee will, in accordance with
the terms of the particular plan, be eligible to continue to receive Benefits.
9. RIGHTS OF EMPLOYEE ON TERMINATION AND LUMP SUM PAYMENT
Where the Employee's employment under this Agreement has been
terminated by the Corporation under section 8.1.2, the Employee shall be
entitled, upon receipt by the Corporation of appropriate releases, resignations,
and other similar documentation, to receive from the Corporation, in addition to
accrued but unpaid Salary and bonus remuneration, if any and any entitlement in
respect of vacation as contemplated by section 7, a lump sum payment equal to
twelve month's Salary and 2.5 percent of his Salary in respect of his
entitlement to Benefits, less any amounts payable to the Employee in lieu of
notice where a Stop Work Notice has been given pursuant to section 8.1.2 and
less any amounts owing by the Employee to the Corporation for any reason. For
the purposes of the Employee's entitlement to Benefits, the Employee shall
receive an amount equal to 2.5 percent of his Basic Salary for the purpose of
obtaining equivalent coverage during the notice period. Notwithstanding the
foregoing, if the employment of the Employee is terminated because of the
occurrence of Disability, the Employee will, in accordance with the terms of the
particular plan, be eligible to continue to receive Benefits.
Except as provided above in this section and subject to
section 10 and section 11, where the Employee's employment has been terminated
by the Employee or by the Corporation for any reason, the Employee shall not be
entitled, except to the extent required under any mandatory employment standard
under the ESA, to receive any payment as severance pay, in lieu of notice, or as
damages. Except as to any entitlement as provided above and subject to section
10 and section 12, the Employee hereby waives any claims that the Employee may
have against the Corporation for or in respect of severance pay, or on account
of loss of office or employment or notice in lieu thereof or damages in lieu
thereof (other than rights to accrued but unpaid Salary and vacation pay and to
reimbursement for expenses pursuant to section 6). The payments to the Employee
where the Corporation has given notice pursuant to section 8.1.2 above, whether
or not a Stop Work Notice is given, shall be deemed to include and to satisfy
entitlement to severance pay pursuant to the ESA to the extent of such payments.
-11-
10. CHANGE OF CONTROL
10.1. TERMINATION OF EMPLOYMENT BY THE CORPORATION FOR JUST CAUSE.
Following a Change of Control, the Corporation may terminate the
Employee's employment at any time without notice or further obligations
to the Employee under this Agreement for reasons of Just Cause. For
greater certainty, following a Change of Control the Employee shall not
be deemed to have been terminated for Just Cause unless and until there
has been delivered to the Employee a copy of a resolution duty adopted
by the affirmative vote of not less than three-quarters of the entire
membership of the board of directors of the Corporation (excluding the
Employee if the Employee is at the time a director of the Corporation)
at a meeting of the board called and held for the purpose (after
reasonable notice to the Employee), finding that in the good faith
opinion of the Board the Employee's conduct constituted Just Cause and
specifying the particulars thereof. The date on which such resolution
is given to the Employee shall be the effective date of any termination
pursuant to this section 10.1.
10.2. TERMINATION BY THE EMPLOYEE WITHOUT GOOD REASON
Notwithstanding the provisions of section 8 hereof, if at any time
within six months following a Change of Control the Employment of the
Employee is voluntarily terminated by the Employee for any reason other
than (i) Good Reason, Disability, death, or Retirement; or (ii) by the
Corporation for Just Cause, the Employee shall be entitled to an amount
equal to his annual Salary (less any required statutory deductions and
withholdings).
10.3. TERMINATION OF EMPLOYMENT WITHOUT JUST CAUSE OR FOR GOOD REASON.
Notwithstanding the provisions of section 8 and section 10.2 hereof, if
at any time within 24 months following a Change of Control, the
Employee's employment is terminated, (i) by the Corporation other than
for Just Cause; or (ii) by the Employee in response to a Good Reason,
the following provisions shall apply:
-12-
10.3.1. the Employee shall be entitled to receive, and the
Corporation shall pay to the Employee immediately following
termination, a cash amount equal to one times the Employee's
Basic Salary less any required statutory deductions;
10.3.2. the Employee shall be entitled to receive, and the
Corporation shall pay to the Employee, immediately following
termination, a cash amount equal to five percent of his annual
Salary in lieu of continued benefit coverage; and
10.3.3. if at the date of termination of the Employee's
employment, the Employee holds options for the purchase of
shares under a share option plan, all options so held shall,
notwithstanding the terms of the Corporation's share option
plan, (i) immediately vest to the extent they have not already
vested at such date; and (ii) (A) continue to be held on the
same terms and conditions as if the Employee continued to be
employed by the Corporation or (B) if the Employee so elects
in writing within 90 days after the date of termination, be
purchased by the Corporation at a cash purchase price equal to
the amount by which the aggregate "fair market value" of the
shares subject to such options exceeds the aggregate option
price for such shares, provided that for this purpose, "fair
market value" means the higher of (i) the average of the
closing prices for the shares of the same class of the
Corporation on the principal securities exchange (in terms of
volume of trading) on which such shares are listed at the time
of termination for each of the last 10 days prior to such time
on which such shares traded on such securities exchange, and
(ii) if the Change of Control involved the purchase and sale
of such shares, the average value of the cash consideration
paid to the shareholders of the Corporation in connection with
the transactions resulting in the Change of Control.
For purposes of this Agreement, the Employee's employment shall be deemed to
have been terminated following a Change of Control by the Corporation without
Just Cause or by the Executive with Good Reason, if (i) the Employee's
employment is terminated by the Corporation without Just Cause prior to a Change
of Control and such termination was at the request or
-13-
direction of a Person who has entered into an agreement with the Corporation or
any shareholder of the Corporation the consummation of which would constitute a
Change of Control; (ii) the Employee terminates his employment with Good Reason
prior to a Change of Control and the circumstance or event which constitutes
Good Reason occurs at the request or direction of a Person who has entered into
an agreement with the Corporation or any shareholder of the Corporation the
consummation of which would constitute a Change of Control; or (iii) the
Employee's employment is terminated by the Corporation without Just Cause prior
to a Change of Control and the Employee reasonably demonstrates that such
termination is otherwise in connection with or in anticipation of a Change of
Control which actually occurs.
For greater certainty, this section 10(3) does not apply in the event of the
termination of the employment of the Employee as a result of death, Disability
or Retirement or by the Corporation for Just Cause or, subject to section 10.2
by the Employee without Good Reason. If the Employee or the Corporation intends
to terminate the Employee's employment as contemplated in this section 10, the
party having such intention shall in accordance with the provisions of section
18 hereof give the other notice thereof.
11. RIGHTS AFTER THREE YEARS EMPLOYMENT
Notwithstanding the provisions of sections 8, 9 and 10 hereof,
if this Agreement is terminated at any time following February 19, 2004, the
Employee shall be entitled:
11.1. in the case of termination pursuant to section 8.1.2, to twelve
months plus one month for each full Year of Employment worked following
the third anniversary Year of Employment to a maximum of six months
prior written notice and the effective date of termination shall be the
last day of such notice period;
11.2. with respect to the Employee's right to elect a lump sum payment
pursuant to section 9, to receive an amount equal to one year's Basic
Salary plus one month's Basic Salary for each full Year of Employment
worked following the third anniversary Year of Employment to a maximum
of six months' Basic Salary and five percent of annual Salary in lieu
of continued benefit coverage (less any amounts payable to the Employee
in lieu of
-14-
notice where a Stop Work Notice has been given pursuant to section 8.2
and less any amounts owing by the Employee to the Corporation for any
reason). For greater certainty, if the employment of the Employee is
terminated because of the occurrence of Disability, the Employee will,
in accordance with the particular plan, fund or arrangement be eligible
to continue to receive Benefits; and
11.3. if the Employee's employment is terminated without Just Cause or
for Good Reason following a Change of Control, the employee shall be
entitled to receive (i) a cash amount equal to two times Basic Salary
(less any required statutory deductions); and (ii) the Employee shall
be entitled to receive a cash amount equal to ten percent of the
Employee's Basic Salary in lieu of continued benefit coverage.
12. NO OBLIGATION TO MITIGATE
The Employee shall not be required to mitigate the amount of
any payment or Benefits provided for in this Agreement by seeking other
employment or otherwise, nor (except as specifically provided herein), shall the
amount of any payment provided for in this Agreement be reduced by any
compensation earned by the Employee as a result of employment by another
employer after termination or otherwise.
13. NON-COMPETITION
The Employee shall not, either during the Employment Period or
for the greater of the Restricted Period and for a period of one year following
the end of the Employment Period, directly or indirectly, in any manner
whatsoever including, without limitation, either individually, or in
partnership, jointly or in conjunction with any other Person, or as employee,
principal, agent, director or shareholder:
13.1. be engaged in any undertaking;
13.2. have any financial or other interest (including an interest by
way of royalty or other compensation arrangements) in or in respect of
the business of any Person which carries on a business; or
-15-
13.3. advise, lend money to, guarantee the debts or obligations of or
permit the use of the Employee's name or any parts thereof by any
Person which carries on a business;
in which is the same as or substantially similar to or which competes with or
would compete with the refractive laser corrective surgery business carried on
during the Employment Period or at the end thereof, as the case may be., by the
Corporation or any of its Subsidiaries.
Notwithstanding the foregoing, nothing herein shall prevent
the Employee from owning not more than 5% of the issued shares of a corporation,
the shares of which are listed on a recognized stock exchange or traded in the
over the counter market in Canada or the United States, which carries on a
business which is the same as or substantially similar to or which competes with
or would compete with the business of the Corporation or any of its
Subsidiaries.
14. NO SOLICITATION OF PATIENTS
The Employee shall not, either during the Employment Period or
the greater of the Restricted Period or a period of 1 year following the end of
the Employment Period, directly or indirectly, contact or solicit any designated
patients of the Corporation or any of its Subsidiaries for the purpose of
selling to the designated patients any products or services which are the same
as or substantially similar to, or in any way competitive with, the refractive
laser corrective surgery products or services sold by the Corporation or any of
its Subsidiaries during the Employment Period or at the end thereof, as the case
may be. For the purpose of this section, a designated patient means a Person who
was a patient of the Corporation or of any of its Subsidiaries during some part
of the Employment Period.
15. NO SOLICITATION OF EMPLOYEES
The Employee shall not, either during the Employment Period or
the Restricted Period and for a period of 1 year following the Restricted
Period, directly or indirectly, employ or retain as an independent contractor
any employee of the Corporation or any of its Subsidiaries or induce or solicit,
or attempt to induce, any such person to leave his/her employment.
-16-
16. CONFIDENTIALITY
The Employee shall not, either during the Employment Period or
at any time thereafter, directly or indirectly, use or disclose to any Person
any Confidential Information provided, however, that nothing in this section
shall preclude the Employee from disclosing or using Confidential Information
if:
16.1. the Confidential Information is available to the public or in the
public domain at the time of such disclosure or use, without breach of
this Agreement; or
16.2. disclosure of the Confidential Information is required to be made
by any law, regulation, governmental body, or authority or by court
order.
The Employee acknowledges and agrees that the obligations under this section are
to remain in effect in perpetuity and shall exist and continue in full force and
effect notwithstanding any breach or repudiation, or alleged breach or
repudiation, by the Corporation of this Agreement.
17. REMEDIES
The Employee acknowledges that a breach or threatened breach
by the Employee of the provisions of any of sections 13 to 16 inclusive will
result in the Corporation and its shareholders suffering irreparable harm which
is not capable of being calculated and which cannot be fully or adequately
compensated by the recovery of damages alone. Accordingly, the Employee agrees
that the Corporation shall be entitled to interim and permanent injunctive
relief, specific performance and other equitable remedies, in addition to ally
other relief to which tile Corporation may become entitled.
18. NOTICES
Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be given by prepaid first-class
mail, by facsimile or other means of electronic communication or by
hand-delivery as hereinafter provided, except that any notice of termination by
the Corporation under section 8 or section 10 shall be hand-delivered or given
by
-17-
registered mail. Any such notice or other communication, if mailed by prepaid
first-class mail at any time other than during a general discontinuance of
postal service due to strike, lockout or otherwise, shall be deemed to have been
received on the fourth Business Day after the post-marked date thereof, or if
mailed by registered mail, shall be deemed to have been received on the day such
mail is delivered by the post office, or if sent by facsimile or other means of
electronic communication, shall be deemed to have been received on the Business
Day following the sending, or if delivered by hand shall be deemed to have been
received at the time it is delivered to the applicable address noted below
either to the individual designated below or to an individual at such address
having apparent authority to accept deliveries on behalf of the addressee.
Notice of change of address shall also be governed by this section. In the event
of a general discontinuance of postal service due to strike, lock-out or
otherwise, notices or other communications shall be delivered by hand or sent by
facsimile or other means of electronic communication and shall be deemed to have
been received in accordance with this section. Notices and other communications
shall be addressed as follows:
a) if to the Employee:
Xxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
b) if to the Corporation:
TLC The Laser Eye Center Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chief Executive Officer
Telecopier number: (000) 000-0000
19. HEADINGS
The inclusion of headings in this Agreement is for convenience
of reference only and shall not affect the construction or interpretation
hereof.
-18-
20. INVALIDITY OF PROVISIONS
Each of the provisions contained in this Agreement is distinct
and severable and a declaration of invalidity or unenforceability of any such
provision by a court of competent jurisdiction shall not affect the validity or
enforceability of any other provision hereof.
21. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter of this Agreement. This Agreement
supersedes and replaces all prior agreements, if any, written or oral, with
respect to the Employee's employment by the Corporation and any rights which the
Employee may have by reason of any such prior agreement or by reason of the
Employee's prior employment, if any, by the Corporation. There are no
warranties, representations or agreements between the parties in connection with
the subject matter of this Agreement except as specifically set forth or
referred to in this Agreement. No reliance is placed on any representation,
opinion, advice or assertion of fact made by the Corporation or its directors,
officers and agents to the Employee, except to the extent that the same has been
reduced to writing and included as a term of this Agreement. Accordingly, there
shall be no liability, either in tort or in contract, assessed in relation to
any such representation, opinion, advice or assertion of fact, except to the
extent aforesaid.
22. WAIVER, AMENDMENT
Except as expressly provided in this Agreement, no amendment
or waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision nor shall any waiver of any provision
of this Agreement constitute a continuing waiver unless otherwise expressly
provided.
23. CURRENCY
All amounts in this Agreement are stated and shall be paid in
Canadian currency.
-19-
24. EMPLOYERS AND EMPLOYEES ACT NOT TO APPLY
The Corporation and the Employee agree that section 2 of the
Employers and Employees Act (Ontario) shall not apply to or in respect of this
Agreement or the employment of the Employee hereunder.
25. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
26. COUNTERPARTS
This Agreement may be signed in counterparts and each of such
counterparts shall constitute an original document and such counterparts, taken
together, shall constitute one and the same instrument.
27. ACKNOWLEDGEMENT
The Employee acknowledges that:
27.1. the Employee has had sufficient time to review and consider this
Agreement thoroughly;
27.2. the Employee has read and understands the terms of this Agreement
and the Employee's obligations hereunder; and
27.3. the Employee has been given an opportunity to obtain independent
legal advice, or such other advice as the Employee may desire,
concerning the interpretation and effect of this Agreement; and
27.4. this Agreement is entered into voluntarily and without any
pressure and the Employee's continued employment has not been made
conditional upon execution of this Agreement by the Employee.
-20-
IN WITNESS WHEREOF the parties have executed this Agreement.
TLC Laser Eye Centers Inc.
By: /s/ XXXXX XXXXXXXX
------------------------------------
Xxxxx Xxxxxxxx
Chief Executive Officer
Witness
)
)
)
)
)
)
/s/ [ILLEGIBLE] ) /s/ XXXXX XXXXXXX
------------------------------------- ) ------------------------------------
) Xxxxx Xxxxxxx
SCHEDULE 5.2
BONUS REMUNERATION
Xxxxx Xxxxxxx will be eligible to be paid up to 20% of base salary to be paid
annually, on or about September 1st, once fiscal year-end financials have been
finalized, broken down as follows:
o 10% paid based on the achievement of pre-determined, agreed
upon individual annual goals. If these goals are not met, this
part of the bonus will not be payable.
o 10% paid based on the achievement of pre-determined
corporate (TLC) annual goals. If these goals are not met, this
part of the bonus will not be payable.
In special circumstances, where Xxxxx Xxxxxxx did not meet his personal
objectives, or the corporation (TLC) did not meet its overall objectives, Xxxxx
Xxxxxxx may still be entitled to be paid either the personal or the corporate
component of this bonus plan, at the discretion of the Chief Executive Officer.
