CONSULTING AGREEMENT
EXHIBIT 10.2
This Consulting Agreement (“Agreement”) is entered into as of July 1, 2008, by and between TLC
Vision Corporation (“TLCV”), a New Brunswick corporation, with its principal place of business at
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000, and Xxxxxxx X. Xxxxxxxxx, M.D.
(“Lindstrom”), an individual and resident of the State of Minnesota, whose address is 0000 XxXxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000.
WHEREAS, TLCV is in the business of providing equipment and facilities for the performance of
ophthalmic surgery, including but not limited to LASIK, cataract, photorefractive keratectomy
(“PRK”) and phototherapeutic keratectomy (“PTK”); and
WHEREAS, TLCV desires to engage the services of Xxxxxxxxx to serve as the Chief Medical
Officer for TLCV and to perform such other services as the parties agree under the terms and
conditions set forth in this Agreement.
THEREFORE, for and in consideration of the premises and the mutual agreements set forth
herein, the parties agree as follows:
1. CHARACTER AND EXTENT OF SERVICES. Xxxxxxxxx agrees to accept the position and
responsibilities of Chief Medical Officer of TLCV, reporting to the Chief Executive Officer of
TLCV. The primary activities of this position shall focus on the clinical development and support
of TLCV and duties shall include, without limitation, the following: working with the President -
TLC Refractive Centers, the President — TLC Doctors Services, and the Vice President — Clinical
Services on the ongoing development of user training courses; monitoring clinical trials; assisting
in developing and maintaining relationships with certain users and suppliers as designated by TLCV;
reviewing current and future business initiatives with respect to developing synergies and support
systems for the Direct to Consumer and Optometric Referral business models; serving as Medical
Director of Sightpath Medical, Inc. to provide services as such as mutually agreed to by Xxxxxxxxx
and the President – Doctors Services; providing expertise when necessary to assist in the
continuous improvement of clinical quality standards and the development of strategic business
initiatives with regards to services provided by the TLC Clinical Services Department; and any
other duties as mutually agreed upon from time to time (the foregoing collectively referred to as
the “Services”). The dates, times and places of performance for the Services shall be set in
advance, upon reasonable notice, by mutual agreement of the parties.
2. PERIOD OF PERFORMANCE. This Agreement shall remain in effect for a period of three years,
beginning July 1, 2008 (“Effective Date”), unless otherwise terminated pursuant to the terms
hereof. After the initial term, this Agreement shall automatically renew for one (1) year terms
unless either party provides written notice to the other party of its intent not to renew this
Agreement at least ninety (90) days prior to the expiration of the initial term or any renewal
term.
In addition, this Agreement may be terminated for any of the following reasons:
(a) TLCV may terminate this Agreement immediately without prior notice in the event of
Xxxxxxxxx’x death or disability.
(b) Immediately upon the mutual written agreement of the parties hereto.
(c) In the event of a material breach of this Agreement by either party, the other party
shall have the right to give written notice of such default to the defaulting party
(“Default Notice”). In the event such breach is not cured to the reasonable satisfaction of
the non-breaching party within ten (10) days after service of the Default Notice, this
Agreement shall automatically terminate.
(d) Notwithstanding any other provision hereof, this Agreement may be terminated by the party
identified below upon one (1) day’s prior notice, as follows:
(i) By TLCV in the event of the revocation, suspension, cancellation, non-renewal or other
limitation of Xxxxxxxxx’x medical license;
(ii) By either party in the event of the final conviction, after all appellate proceedings are
taken, of the other party, of any crime punishable as a felony under federal or state law;
(iii) By either party (“non-defaulting party”) in the event the other party (“defaulting
party”) materially breaches any of the terms and conditions of this Agreement and the
non-defaulting party has given at least two (2) Default Notices within the preceding twenty-four
(24) months pursuant to Section 2(c) hereof with respect to other instances of breaching this
Agreement by the defaulting party;
(iv) By TLCV if Xxxxxxxxx has engaged in misconduct or has breached this Agreement in such a
manner as to render the continuance of this Agreement materially detrimental to TLCV or damaging to
TLCV’s reputation; or
(v) By TLCV in the event Xxxxxxxxx is in default of the TLCV Clinical Advisory Agreement,
dated January 1, 2007, or any other agreement between Xxxxxxxxx and TLCV or its affiliates, and has
failed to cure such default during any applicable cure periods.
3. COMPENSATION. In consideration of this Agreement and the Services, TLCV shall compensate
Xxxxxxxxx in accordance with the following provisions. For purposes of this Section 3, a “Contract
Year” shall be defined as a period of twelve (12) consecutive months beginning on the Effective
Date of this Agreement, and each one-year anniversary thereof. The terms of this Section 3 are not
intended to modify, alter or amend the compensation provisions of that certain TLCV Clinical
Advisory Agreement made between the parties as of January 1, 2007.
(a) On July 1, 2008, TLCV will xxxxx Xxxxxxxxx a seven-year Option to purchase
the equivalent of One Hundred Thousand (100,000) shares in TLCV Common Stock (“Stock Option
Grant”), with two-year vesting rights, and subject to the terms and conditions of the TLCV
Amended and Restated Share Option Plan; the exercise price for such options shall be the
closing price for TLCV Common Stock on June 30, 2008. The Stock Option Grant shall
constitute full compensation for all Services provided during the first Contract Year.
Should Xxxxxxxxx fail, or opt not, to exercise the options granted hereunder, TLCV shall
have no further obligation to compensate Xxxxxxxxx for the Services.
(b) With respect to the second and third Contract Years, Xxxxxxxxx shall receive the annual
sum of One Hundred Twenty Thousand Dollars ($120,000.00). TLCV shall pay Xxxxxxxxx such
compensation in equal quarterly installments in accordance with TLCV’s regular policies and
practices.
(c) With respect to the quarterly payment due Xxxxxxxxx attributable to services rendered in
the 2nd Quarter of 2008, Xxxxxxxxx may elect to receive as payment an equivalent
value of options to purchase TLCV Common Stock.
4. INDEPENDENT CONTRACTOR. In the performance of this Agreement, it is mutually understood
and agreed that Xxxxxxxxx is at all times acting and performing as an independent contractor with,
and not the employee of, TLCV and no act, or failure to act by any party hereto shall be construed
to make or render the other party its partner, joint venturer, employee or associate.
5. ASSIGNMENT AND SUBCONTRACTING. Xxxxxxxxx’x obligations authorized under this Agreement are
not assignable or transferable and Xxxxxxxxx agrees not to subcontract any of the work authorized
hereunder without the prior written consent of TLCV, which may be withheld in its sole discretion.
6. CONFIDENTIAL TREATMENT AND NO DISCLOSURE TO OTHERS. Xxxxxxxxx shall
hold confidential and shall not, either during the course of this Agreement or thereafter,
directly or indirectly, disclose to, publish or use for the benefit of any third parties, or
himself, except in carrying out his duties for TLCV hereunder, any of TLCV’s information of which
Xxxxxxxxx acquires knowledge or produces on behalf of TLCV during the term of this Agreement,
without first having obtained TLCV’s written consent to such disclosure or use. In addition,
Xxxxxxxxx will not, either during the course of this Agreement with TLCV or thereafter, disclose to
any third parties or use personally, except in carrying out his duties for TLCV any confidential
information of TLCV, including, but not limited to:
(a) Marketing plans or strategies of TLCV or its affiliates;
(b) Names and technical requirements of TLCV’s or its affiliates,
customers and suppliers;
(c) Other information of any nature and in any form which, at the time or times
concerned, is not generally known to persons engaged in business similar to that
conducted by or contemplated by TLCV or its affiliates.
The sole exception to this Agreement relates to such limited disclosure to employees or
affiliates of TLCV that is absolutely necessary to Xxxxxxxxx’x performance of the Services.
7. INDEMNIFICATION. Each party to this Agreement agrees to indemnify, defend and save the
other harmless, including the payment of reasonable attorneys’ fees, court costs and expenses, from
and against all loss, liability and damage caused by the act or omission of such party.
8. INSURANCE. During the term of this Agreement, Xxxxxxxxx shall maintain in full force and
effect, at his sole cost and expense, comprehensive professional liability insurance coverage,
including malpractice insurance coverage, with a national insurance carrier reasonably acceptable
to TLCV, under which Xxxxxxxxx shall be named as the insured to protect against any liability
incident to the rendering of the Services. Such insurance coverage shall be either (i)
“occurrence” coverage or (ii) “claims made” coverage with additional “tail” coverage, with limits
of $1,000,000 per claim and $3,000,000 in the aggregate. Upon execution of this Agreement, at
each anniversary of this Agreement and at TLCV’s request, Xxxxxxxxx shall furnish certificates
evidencing such insurance coverage to TLCV.
9. OWNERSHIP OF WORK PRODUCT. All technical data, evaluations, reports and other work product
of Xxxxxxxxx produced at the request of TLCV shall be the property of TLCV and shall be delivered
to TLCV upon completion of the services authorized hereunder. Xxxxxxxxx may retain copies thereof
for his files and personal use.
10. ENTIRE AGREEMENT AND PRIOR AGREEMENTS. This Agreement, together with exhibits and
attachments, contains the entire agreement between Xxxxxxxxx and TLCV relating to the subject
matter hereof. Any prior agreements, promises, negotiations or representations, either oral or
written, relating to the subject matter of this Agreement, not expressly set forth herein, are of
no force or effect. This Agreement supersedes and serves to terminate the Consulting Agreement
between Xxxxxxxxx and Laser Vision Centers, Inc., a wholly owned subsidiary of TLCV, dated August
1, 1995, and any amendments thereto, with notice of termination hereby waived by the parties.
11. AMENDMENT. This Agreement or any part or section of it may be amended at any time during
the term of this Agreement only by the mutual written consent of Xxxxxxxxx and TLCV, except as
otherwise expressly provided herein. Any other amendment or alteration of this Agreement without
such written consent shall be considered null and void.
12. WAIVER. Neither the failure of TLCV to exercise any power reserved to it under this
Agreement, or to insist upon strict compliance by Xxxxxxxxx with any obligation or condition
hereunder, nor the custom or practice of the parties in variance with the terms of this Agreement,
shall constitute a waiver of TLCV’s right to demand exact compliance with the terms of this
Agreement. Waiver by TLCV of any particular default by Xxxxxxxxx shall not affect or impair TLCV’s
right in respect to any subsequent default of the same or of a different nature, nor shall any
delay, waiver, forbearance, or omission of TLCV to exercise any power or rights arising out of
any breach or default by Xxxxxxxxx of any of the terms, provisions, or covenants of this
Agreement, affect or impair TLCV’s rights, nor shall such constitute a waiver by TLCV of any right
under this Agreement or of the right to declare any subsequent breach or default.
13. HEADINGS. The headings of articles and sections contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
14. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws
of the State of Missouri.
15. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors and assigns.
16. SURVIVAL OF RIGHTS, OBLIGATIONS & DUTIES. The rights of TLCV and the obligations and
duties of Xxxxxxxxx contained in Sections 6 and 7 of this Agreement shall survive the termination
of this Agreement and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day
and year first above written.
| XXXXXXX X. XXXXXXXXX, M.D. | TLC VISION CORPORATION | |||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | By: | /s/ Xxxxx X. Xxxxxx | |||||
| Xxxxx X. Xxxxxx, General Counsel and Secretary | ||||||||
Date:
|
July 29, 2008 | Date: | July 17, 2008 | |||||
