EXHIBIT 10.47
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into and
effective as of October 27, 1999 (the "Effective Date"), by and between
LASERSIGHT TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and XXXX
XXXXXXXX, M.D., M.S.E.E. an individual residing in the State of Texas
(the "Employee").
RECITALS
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A. The Employee desires to be employed by the Company with a
title to be conferred immediately upon assuming the duties of the position for
which the Employee is employed.
B. The Company desires to retain the Employee upon the terms
and conditions herein set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment of the Employee. Subject to the terms and conditions of
this Agreement, the Company hereby employs the Employee, and the Employee hereby
accepts such employment and agrees to perform the services specified herein.
2. Duties. The Employee shall hold the title of and serve as Medical
Director of the Company and have authority and responsibility in accordance with
policies and practices of the Company. The Employee shall report to and be
subject to the direction of the Chief Executive Officer of the Company or such
person's designee. During the term of employment hereunder, the Employee shall:
(a) Perform, to the best of the Employee's ability, those duties
reasonably assigned to the Employee from time to time;
(b) Devote the Employee's full time and first priority
business efforts to the Company's business, provided that nothing
herein shall prohibit the Employee from spending reasonable amounts of
time for personal affairs, including, without limitation, managing his
personal investments, current consulting relationships pursuant
to Exhibit A; and
(c) Carry out the Company's policies and directives in a
manner that will promote and develop the Company's best interests.
3. Base Salary. In consideration of the Employee satisfying the
Employee's obligation under this Agreement, the Employee will receive a base
salary (the "Base Salary") which will be calculated at an annual rate of Two
Hundred Thousand Dollars ($200,000). The Base Salary shall be payable in equal
installments in accordance with the Company's customary mode of salary payments
for employees of the Company and shall be subject to the Company's standard
withholdings for applicable taxes and benefit contributions. If the Company
establishes a refractive laser center in the Orlando area, Employee and the
Company shall review Employee's compensation in light of services to be provided
by the Employee at such center.
4. Stock Options. The Employee will be granted options to purchase
200,000 shares of the Company's common stock (the "Stock Options") on the last
to occur of the following dates (such date to be referred to as the "Approval
Date"): (i) October 14, 1999, the date on which the Company's Board of Directors
approved the grant of the Stock Options, and (ii) the date on which this
Agreement is executed by both the Company and the Employee. The Stock
Options shall be granted pursuant to and shall be governed by the terms of the
Company's 1996 Equity Incentive Plan, as amended and restated (the "Equity
Incentive Plan") and the award agreement to be delivered to the Employee
pursuant to the Equity Incentive Plan. The Stock Options shall be granted at an
option price per share equal to the Fair Market Value per share (as defined in
the Equity Incentive Plan) on the Approval Date and shall vest as set forth
in Exhibit B.
5. Fringe Benefits. During the term of employment hereunder, the
Employee shall be entitled to those fringe benefits and perquisites set forth on
Exhibit A hereto.
6. Expenses. The Company shall reimburse the Employee for reasonable
costs and expenses, including, but not limited to, expenses for travel, lodging
and meals, incurred in connection with the performance of the Employee's duties
hereunder. In order for the Employee to be eligible for reimbursement, the
Employee shall comply with the Company's relevant policies, procedures and
guidelines established and implemented from time to time by the Company.
7. Terms of Employment; Severance.
(a) The term of this Agreement shall begin on the date hereof
and shall continue for the three year period immediately thereafter,
unless sooner terminated as provided in this Section 7 (the "Initial
Term"). Unless either party shall give notice of intent not to renew
this Agreement to the other party at least 60 days prior to the end of
the Initial Term or any Renewal Term (as defined herein), the term of
this Agreement shall, on each such anniversary date, be automatically
extended for successor terms of one year each (each a "Renewal Term").
(b) Notwithstanding the foregoing, the Employee's employment
hereunder may be terminated by the Company at any time for Cause. Such
termination shall be effective upon the Company providing written
notice to the Employee as to the effective date of termination.
(c) Notwithstanding the foregoing, the Employee's employment
hereunder shall terminate in the event of the Employee's death or
Disability (as defined in Section 10).
(d) Notwithstanding the foregoing, the Employee's employment
hereunder may be terminated by the Company at any time for Good Reason
(as defined in Section 10) upon prior written notice to the Company
specifying therein the grounds for termination and the effective
date of termination.
(e) In addition to all other rights of the Employee and obligations
of the Company described herein which arise or continue upon
termination of the Employee's employment hereunder for any reason
whatsoever, the Company shall pay to the Employee all salary and
benefits earned through the effective date of termination.
8. Restriction Against Competition.
a) In consideration of the Compensation to be received
hereunder, the Employee agrees that while he is employed by the Company
pursuant to this Agreement, and during the eighteen months period
following the effective date of termination of this Agreement, for any
reason, the Employee shall not, directly or indirectly, as a
stockholder, partner, officer, director, agent, consultant, employee,
or otherwise:
(i) engage in any business that competes with the
business of the Company ("Company" defined in Sections 8, 9
and 10(b) herein to mean all Subsidiaries, Affiliates,
divisions, successors, and assigns of the Company and any of
their Subsidiaries or Affiliates) anywhere within the United
States and such other countries that the Company is then
conducting its business; provided, however, that the foregoing
shall not prohibit the Employee's ownership of up to 1% of the
outstanding shares of capital stock of any corporation whose
securities are publicly traded on a national or regional stock
exchange;
(ii) purposefully interfere or attempt to interfere
with any of the Company's contracts (regardless of whether
these contracts are in writing or verbal) or business
relationships or advantages existing and in effect as of the
effective date of termination of this Agreement;
(iii) solicit for employment, either directly or
indirectly, for himself or for another, any of the technical
or professional employees who are or were employed by the
Company during the eighteen month period following the termination
of this Agreement; and
(iv) purposefully interfere with the business
relationship of or solicit the business or orders of Persons
(a) who are the Company's customers on the effective date of
termination of this Agreement, or one year prior thereto, or
(b) a prospective or potential customer of the Company, except
that with respect to the eighteen month period following the
effective date of termination of this Agreement, such
restriction shall apply only to prospective or potential
customers (1) to whom the Company has submitted a formal
quotation within the one year prior to the effective date of
termination of this Agreement, or (2) that have been
previously listed or identified by the Company as a business
prospect at any time during the six months preceding the
effective date of termination.
(b) The parties agree that if the Employee commits or
threatens to commit a breach of the covenants of this Section 8, the
Company 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 any such breach would cause irreparable
injury to the parties and that money damages may not provide an
adequate remedy therefor.
9. Protection of Confidential Information and Trade Secrets of the
Company.
(a) Confidentiality. During the term of this Agreement and for
a period of three years after any termination or expiration thereof,
the Employee agrees that the Employee will not use for the Employee or
others or divulge or convey to others any secret or confidential
information, knowledge or data of the Company obtained by the Employee
during his employment with the Company. Such information, knowledge or
data includes but is not limited to secret or confidential matters: (i)
of a technical nature such as, but not limited to, methods, know-how,
formulae, compositions, processes, discoveries, machines, inventions,
intellectual property, computer programs and similar items or research
projects; (ii) of a business nature such as, but not limited to,
information about the cost, purchasing, profits, markets, sales or
customers; and (iii) pertaining to future developments such as, but not
limited to, research and development, future marketing or merchandising
plans and future expansion plans. 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 Company's
remedies at law for any breach or threat of breach by him of the
provisions of paragraph (a) of this Section 9 will be inadequate, and
that the Company shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of paragraph (a) of this Section 9
and to enforce specifically the terms and provisions thereof, in
addition to any other remedy to which the Company may be entitled at
law or equity.
(c) Return of Documents and Other Property. Upon the
termination of the Employee's employment with the Company, or at any
time upon the request of the Company, the Employee shall deliver to the
Company (i) all documents and materials containing secret or
confidential information, knowledge or data relating to the Company's
business and affairs, and (ii) all documents, materials and other
property belonging to the Company, which in either case are in the
possession or under the control of the Employee.
(d) Intellectual Property Rights. The Employee acknowledges
and agrees that in consideration for his employment with the Company
and in exchange for the consideration to be paid to the Employee in
connection with such employment, all creative works The Employee
produces in connection with his employment by the Company which relate
to the Company's actual or demonstrably anticipated research or
development, including, without limitation, any invention, formula,
pattern, compilation, computer program (and related documentation and
source code), device, method, technique, drawing, process or other
intellectual property or property right (collectively, "Intellectual
Property"), shall be considered to have been prepared for the Company
as a part of and pursuant to the Employee's employment with the
Company. The Employee shall disclose to the Company the existence of
such Intellectual Property when he becomes aware of its existence, and
the Employee agrees that any such Intellectual Property shall be owned
by the Company regardless of whether it would otherwise be considered a
work made for hire. The Employee agrees to execute any documents which
the Company deems necessary to protect the Company's interest,
including assignments, and further agrees to give evidence and
testimony and take any other reasonable actions as may be necessary, to
secure and enforce the Company's rights.
Notwithstanding anything set forth in this Section 9(d) to the
contrary, the parties acknowledge and agree that any Intellectual
Property that the Employee (i) has developed or was in the process of
developing prior to the Effective Date or which he develops during the
Term, and (ii) has not used any of the Company's resources (whether
materials, equipment, supplies, or other employees, contractors or
consultants of the Company) in connection with such development, shall
be owned by the Employee (the "Employee Intellectual Property");
provided, however, the Employee shall promptly notify (the "Development
Notice") the Company of the existence of such Employee Intellectual
Property. The Development Notice shall completely describe the Employee
Intellectual Property and the applications for such Employee
Intellectual Property. If within 30 days after the Company's receipt of
the Development Notice Company notifies the Employee that the Company
would like to purchase or license the item of Employee Intellectual
Property which is the subject of the Development Notice, then the
Company and the Employee shall negotiate in good faith for the purchase
or license of such item of Employee Intellectual Property. The Employee
agrees that he will not directly or indirectly disclose the existence
of the Employee Intellectual Property to any third party unless the
Company either notifies the Employee in writing that the Company does
not elect to purchase or license the Employee Intellectual Property or
the Company fails to notify the Employee of its intent with regard to
the purchase or license of the Employee Intellectual Property within 30
days after the date of the Company's receipt of the Development Notice.
10. Certain Defined Terms. For purposes of this Agreement, the
following definitions shall apply:
(a) "Affiliate" shall mean with respect to any Person, (i) any
Person which directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, such Person or (ii) any Person who is a director or
officer (A) of such Person, (B) of any Subsidiary of such Person, or
(C) of any Person described in the foregoing clause (i). For purposes
of this definition, "control" of a Person shall mean the power, direct
or indirect, (i) to vote or direct the voting of more than 20% of the
outstanding voting securities of such Person, or (ii) to direct or
cause the direction of the management and policies of such Person,
whether by contract or otherwise.
(b) "Cause" shall mean any of the following:
(i) The Employee's conviction of or plea of no
contest to any crime involving moral turpitude, the theft or
willful destruction of money or other property of the Company
or his conviction of or plea of no contest to any felony
crime;
(ii) The Employee's inability to perform his
responsibilities due to his abuse or misuse of alcohol or
prescribed drugs or any use of illegal drugs;
(iii) The Employee's commission of theft,
embezzlement or fraud against the Company;
(iv) The Employee has willfully damaged the Company's
property, business reputation, or good will;
(v) Unsatisfactory performance by the Employee of
his job or duties hereunder that is not cured within 10 days
after the Employee is notified of such unsatisfactory
performance; or
(vi) The Employee's insubordination or other
misconduct as determined by the Company in its sole and
absolute discretion.
(c) "Compensation" shall mean, with respect to any Person, all
payments and accruals, if any, commonly considered to be compensation,
including, without limitation, all wages, salary, deferred payment
arrangements, bonus payments and accruals, profit sharing arrangements,
payments in respect of equity options or phantom equity options or
similar arrangements, equity appreciation rights or similar rights,
incentive payments, pension or employment benefit contributions or
similar payments, made to or accrued for the account of such Person or
otherwise for the direct or indirect benefit of such Person, plus auto
benefits provided to such Person, if any.
(d) "Disability" shall mean the inability, by reason of
illness or other incapacity, of the Employee substantially to perform
the duties of his then regular employment with the Company, which
inability is reasonably determined by the Company and continues for at
least 90 consecutive days, or for shorter periods aggregating 120 days
during any consecutive twelve-month period.
(e) "Good Reason" shall mean any material breach or default by
the Company that is not cured within 30 days after the Company is
notified of such breach.
(f) "Person" shall mean an individual or a corporation,
association, partnership, joint venture, organization, business,
individual, trust, or any other entity or organization, including a
government or any subdivision or agency thereof.
(g) "Subsidiary" shall mean as to any Person a corporation,
partnership or other entity of which 25% or more of the outstanding
shares of voting stock or other equity ownership are at the time owned,
directly or indirectly through one or more intermediaries, or both, by
such Person and shall include any such entity which becomes a
Subsidiary of such Person after the date hereof. Consolidated
Subsidiary shall mean any Subsidiary of which 51% or more of the
outstanding shares or voting stock or other equity ownership are at the
time owned, directly or indirectly through one or more intermediaries,
or both, by such Person and shall include any such entity which becomes
a Subsidiary of such Person after the date hereof.
11. Payments. Except as specifically provided herein, all amounts
payable pursuant to this Agreement shall be paid without reduction regardless of
any amounts of salary, compensation or other amounts which may be paid or
payable to the Employee from any source or which the Employee could have
obtained upon seeking other employment; provided that the Company shall be
permitted to make all payments pursuant to this Agreement net of any legally
required tax withholdings.
12. Expenses. In the event of any litigation between the parties
relating to this Agreement and their rights hereunder, the prevailing party
shall be entitled to recover all litigation costs and reasonable attorneys' fees
and expenses from the non-prevailing party.
13. Entire Agreement. This Agreement comprises the entire agreement
between the parties hereto and as of the date of this contract, supersedes,
cancels and annuls any and all prior agreements between the parties hereto with
respect to the Employee's provision of services to the Company, including,
without limitation, any consulting arrangement between Employee and the Company.
14. Severability. If all or any part of this Agreement is declared by
any court or governmental authority to be unlawful or invalid, such unlawfulness
or invalidity shall not serve to invalidate any portion of this Agreement not
declared to be unlawful or invalid. Any portion so declared to be unlawful or
invalid shall, if possible, be construed in a manner that will give effect to
the terms of such portion to the fullest extent possible while remaining lawful
and valid.
15. Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of the parties hereto and their respective heirs,
successors, assigns and personal representatives. The Company may assign this
Agreement to any successor or assignee to its business without the written
consent of the Employee. The Employee may not assign, pledge, or encumber his
interest in this Agreement, or any part thereof, without the written consent of
the Company.
16. Notices. Any notice required or permitted pursuant to the
provisions of this Agreement shall be deemed to have been properly given if in
writing and when received by certified or registered United States mail, postage
prepaid, by overnight courier, telecopy or when personally delivered, addressed
as follows:
If to the Company:
LaserSight Technologies, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000
Attn: President
Fax No.: (000) 000-0000
If to the Employee:
Xxxx Xxxxxxxx, M.D., M.S.E.E.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Each party shall be entitled to specify a different address for the receipt of
subsequent notices by giving written notice thereof to the other party in
accordance with this Section. Telecopy notices must be followed up with the
original by certified mail, postmarked within one business day of the date of
the telecopy.
17. Amendments and Waivers. Any provision of this Agreement may be
amended or waived only with the prior written consent of the Company and the
Employee. No failure or delay on the part of either party to this Agreement in
the exercise of any power or right, and no course of dealing between the parties
hereto, shall operate as a waiver of such power or right, nor shall any single
or partial exercise of any power or right preclude any further or other exercise
thereof or the exercise of any other power or right. The remedies provided for
herein are cumulative and not exclusive of any remedies which may be available
to either party at law or in equity. Any waiver of any provision of this
Agreement, and any consent to any departure by either party from the terms of
any provision hereof, shall be effective only in the specific instance and for
the specific purpose for which given. Nothing contained in this Agreement and no
action or waiver by any party hereto shall be construed to permit any violation
of any other provision of this Agreement or any other document or operate as a
waiver by such party of any of his or its rights under any other provision of
this Agreement or any other document.
18. Controlling Law. This Agreement shall be construed in accordance
with the laws of the State of Florida, except for its choice of law provisions.
The parties do hereby irrevocably submit themselves to the personal jurisdiction
of the United States Federal Court for the Middle District of Florida and do
hereby irrevocably agree to service of such Court's process on them.
19. Headings. Section headings herein are for convenience only and
shall not affect the meaning or interpretation of the contents hereof.
20. Counterparts. This Agreement may be executed in counterparts, each
of which is deemed to be an original and all of which taken together constitute
one and the same agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
on its behalf by a duly authorized officer and the Employee has executed this
Agreement, all as of the first day and year written above.
LASERSIGHT TECHNOLOGIES, INC.
By: /s/Xxxxxxx X. Xxxxxx
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Title: Chief Executive Officer
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"EMPLOYEE"
/s/Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, M.D., M.S.E.E.
EXHIBIT A
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Current Consulting Arrangements
A-Scan and IOL Companies that use the Xxxxxxxx Formulas - Intraocular Lens
Calculations and Outcomes
Refractive Consulting Group with Xx. Xxxxxxxx - Refractive Consultant Software
Program for Multifactorial Regression Analysis
Keravision - Analysis of visual acuity results regarding topography and the need
for a prolate corneal shape
Xxxxxxxx Consulting - Sub Chapter S Corporation for Software Sales of
the Xxxxxxxx IOL Consultant and Surgical Outcomes Assessment
Program Software for Intraocular lens power calculations and Outcomes
analysis
EXHIBIT B
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Stock Options Vesting Schedule
1. Fifty Thousand Options vested upon execution of employment agreement.
2. Fifty Thousand Options vested on first year anniversary of employment.
3. Fifty Thousand Options vested on second year anniversary of employment.
4. Fifty Thousand Options vested on third year anniversary of employment.
EXHIBIT C
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Fringe Benefits
See Attached
The following is a brief summary of benefits offered to the Employee by
the Company. Reference should be made to the benefits package supplied by the
Company for a full explanation of each benefit. Each benefit described herein is
subject to the terms, qualifications, limitations and conditions of the
Company's benefit programs, as amended from time to time, and benefits may be
changed, modified, terminated, increased or decreased from time to time. In
order for the Employee to be eligible for certain Company benefits the Employee
may be required to make the contributions required by such benefit plans.
1. Health insurance for the Employee and his eligible dependents.
2. Disability insurance for the Employee.
3. Life insurance for the Employee.
4. Ability to participate in the Company's 401(k) Plan.
5. $6,000 moving expense allowance to be paid to Employee in
monthly payments of $500 during each of the initial 12 months of
the Initial Term.
