EXHIBIT 10.88
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, entered into on the 20th day
of August, 1999, effective as of the 1st day of June, 1999, is by and between
Insight Laser Centers, Inc., a New York corporation having an office at 0000
Xxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxx Xxxx 00000 (the "Company"), and Xxx
Xxxxxxxxx, an individual residing at 00 Xxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to obtain the services of
the Employee, on its own behalf and on behalf of all existing and future
affiliated entities (as said term "affiliate" is defined in Regulation 12(b)
under the Securities Exchange Act of 1934, as amended) specifically excepting,
however, Sterling Vision, Inc., and the Employee desires to be employed by the
Company upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements
and understandings set forth herein, and for the other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Company and the Employee hereby agree as follows:
1. Term of Employment.
The Company hereby employs the Employee to render
services to the Company in the position and with the duties and responsibilities
described in Section 3 hereof commencing as of June 1, 1999 (the "Effective
Date") and continuing thereafter for a period of five (5) years, unless earlier
terminated in accordance with the provisions of Section 5 hereof. For purposes
of this Agreement, the "Term of Employment" shall be the five (5) year period
commencing on the Effective Date, subject to earlier termination pursuant to
Section 5 hereof.
2. Voting by Board of Directors.
It is expressly understood and agreed that in the event any action
and/or decision, required and/or permitted to be taken and/or made (or not taken
and/or made) by the Company under this Agreement (i.e. in connection with the
Employee's employment by the Company) requires the prior approval of the
Company's Board of Directors (the "Board") such approval shall require the vote
of a majority of the members of such Board (at a meeting at which a quorum is
present or, if telephonic, participates) without the
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Employee voting thereon.
3. Position, Duties, Responsibilities.
(a) Position. The Employee hereby accepts such employment and agrees to
serve as the Executive Vice President of the Company and the Administrator of
the Company's laser surgery center located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx (or any other laser surgery center from time to time operated by the
Company and located in New York City; hereinafter referred to as the "Center"),
as well as in such additional, executive officer position(s) as the Board may,
from time to time, reasonably designate. The Employee shall devote her best
efforts and her full business time and attention to the performance of the
services customarily incidental to such offices. The Company, through its Board,
shall retain control over the means and methods by which the Employee shall
perform the above services and of the place(s) (within New York City) at which
such services are to be rendered. With respect to the foregoing, it is expressly
understood and agreed that the Employee shall not be required to relocate her
personal residence to outside of Nassau County, New York.
(b) Other Activities. Except upon the prior written consent of the
Board, the Employee, during the Term of Employment, will not: (i) accept any
other employment; (ii) serve on the board of directors of any other corporation
and/or on the board of managers of any other limited liability company (except
that she may serve, in any capacity, with any civic, educational or charitable
organization or governmental entity or trade association); or (iii) except as
otherwise expressly permitted by the terms hereof, engage, directly or
indirectly, in any other business activity (whether or not pursued for pecuniary
advantage) that is or may be competitive with, or that might place her in a
competing position to that of, the Company, it being understood that the
Employee may own up to five (5%) percent of the equity interests in any
publically traded company.
4. Salary; Benefits; Expenses.
(a) Salary. In consideration of the services to be rendered hereunder,
the Employee, during the initial twenty-four (24) months of the Term of
Employment, shall be paid a salary computed at the rate of One Hundred Thousand
($100,000) Dollars per annum, which amount shall increase by the sum of Ten
Thousand ($10,000.00) Dollars per annum commencing July 1, 2001, in each case
payable in equal, semi-monthly installments.
(b) Benefits and Other Arrangements. In addition to the compensation
set forth in Subsection 4(a) hereof: (i) the Company shall, within ten (10) days
after the expiration of each month during the Term of Employment, reimburse the
Employee the sum of $500 per month in reimbursement of her cellular telephone
bills and
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costs in commuting from her home to the Center; and (ii) the Employee shall be
entitled to participate in any plan, arrangement or policy of the Company
providing for medical benefits and/or sick leave on substantially the same terms
as are generally then made available to other employees of the Company.
(c) Additional Compensation. (i) In addition to the salary set forth in
Subsection 4(a) hereof, the Company, during the Term of Employment, shall pay to
the Employee, within two (2) weeks after the expiration of each month, an amount
equal to the product obtained by multiplying the sum of $25.00 by the number of
laser surgery procedures, in excess of seventy(70) per month, actually
performed, at the Center, on the Summit Technology excimer laser installed
therein (specifically excluding, however, those procedures for which no payment
is received by the Company).
(ii) In addition to the salary set forth in Subsection 4(a) hereof and
the additional compensation set forth in Subsection 4(c)(i) hereof, the
Employee, during the Term of Employment, shall be permitted to collect, from
each doctor performing laser surgery procedures at the Center, a fee for her
special assistance in aiding said doctor(s) with his/her marketing of said
procedures; provided, however, that: (i) in no event shall the Employee utilize
the services of any other employee (of the Company) in connection therewith;
(ii) in no event shall such additional fee reduce the amounts otherwise
generally charged to the doctors performing a similar number of procedures, per
month, at the Center; (iii) in no event shall the Employee solicit or demand
such fee as a condition to such doctor performing laser surgery at the Center;
and (iv) the Employee, within ten (10) days after the expiration of each
quarterly period during the Term of Employment, shall deliver to the Company's
Chief Financial Officer a certificate setting forth, with respect to each such
fee received by the Employee during the prior quarterly period, the name of the
doctor, the number of procedures performed during the month in question (at the
Center) by said doctor, the fee charged by the Company, per procedure, to said
doctor, and the fee paid to the Employee by such doctor.
(iii) In addition to the salary set forth in Subsection 4(a) hereof and
the additional compensation set forth in Subsections 4(c)(i) and (ii) hereof,
the Employee, during the Term of Employment, shall be paid a training fee in an
amount equal to $200 per physician trained, with the Employee's assistance, at
the Center, provided the Company is paid, by each such physician, the sum of
$850 for such training.
(d) Vacation. The Employee shall be entitled to a three (3) week, paid
vacation during each year of the Term of Employment, such vacation to be subject
to the Company's general policies, as the same may be amended from time to time;
provided, however, that if the Employee, due to her work load, is restricted
from taking said vacation (or any portion thereof) during any year of the Term
of Employment, said unused vacation days shall carry over to the
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ensuing year.
(e) Expenses: The Employee shall be entitled to reimbursement for all
ordinary and necessary business expenses incurred in the performance of her
duties hereunder, in each case subject to the Company's receipt of adequate
substantiation and/or documentation thereof.
(f) Annual Convention: The Employee and her spouse and five (5)
children shall be permitted, at the expense of the Company, to attend all annual
conventions conducted by the Company's principal shareholder, Sterling Vision,
Inc. ("SVI"), in each case on the same terms and conditions as those generally
afforded the executive officers of SVI (other than its President and Chairman),
it being understood that the Company, at its option, shall have the right to pay
to the Employee, in lieu of her bringing her children to any such convention,
the estimated costs and expenses, to the Company, in having such children attend
the same.
(g) Employee Stock Options. Simultaneously upon the execution hereof,
SVI, as a shareholder of the Company, shall grant to the Employee options to
purchase an aggregate of Seventy Thousand (70,000) shares of the Company's
Common Stock, which options shall be deemed to have vested immediately and shall
have a term of ten (10) years, fifty (50%) percent of which shall provide for an
exercise price of $3.75 per share, and the balance of which shall provide for an
exercise price equal to $5.00 per share.
5. Termination.
(a) The employment of the Employee hereunder may be terminated by the
Company on not less than thirty (30) days' prior written notice to the Employee
in the event that the Employee is determined to be permanently disabled. As used
in this Section, the Employee shall be deemed to be "permanently disabled" if
the Employee has been substantially unable to discharge her duties and
obligations hereunder, by reason of illness, accident or disability, for a
period of one hundred twenty (120) or more consecutive days. In the event the
employment of the Employee is terminated because of a permanent disability, the
Employee shall receive (net of all benefits available to the Employee under any
Company provided policy of disability insurance available to her) compensation
until the earlier of the date which is three (3) months after the date on which
the Employee first became disabled and the date on which the Term of Employment
shall expire pursuant to Section 1 hereof, payable at the rate and on the terms
provided hereby as if she had not been terminated.
(b) The employment of the Employee hereunder may be terminated by the
Company for cause, at any time during the Term of Employment, upon written
notice from the Company documenting that, in the opinion of the Board, the
Employee shall have: (i) wilfully refused or failed, after twenty (20) days'
prior written notice to
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her that such refusal or failure would constitute a default hereunder, to
perform her duties hereunder, other than any such failure resulting from the
Employee's incapacity due to illness or injury; (ii) been guilty of a material
or willful breach of any of the material terms or provisions of this Agreement
or any other material legal obligation to the Company; (iii) demonstrated gross
negligence or willful misconduct, in any material respect, in the execution of
her assigned duties; or (iv) been convicted of a felony or other serious crime;
provided, however, that in the event the Employee shall dispute the basis
(bases) upon which such decision was made by the Board, the Employee shall have
the right, within such twenty (20) day period, to call a special meeting of the
Board at which the Employee will be permitted to dispute such action taken by
the Board; and, in the event the Board, at such special meeting, shall confirm
the action previously taken by it, the Employee shall have an additional period
of ten (10) days (from and after the date of said special meeting, if any),
within which to cure the default(s) which were the basis (bases) of such Board
action.
(c) The employment of the Employee hereunder shall automatically be
deemed terminated on the date of the Employee's death.
(d) If the Employee's employment is terminated pursuant to Subsections
5(b) or (c) above, the Employee shall be entitled to, and the Company's
obligation shall be limited to, the payment of the compensation accrued under
Subsections 4(a),(b), (c) and (d) hereof (together with all amounts then payable
pursuant to Subsection 4(e) hereof) to the date of such termination or, in the
case of a termination under Subsection 5(a) hereof, to the date specified
therein.
6. Confidentiality.
(a) The Employee shall not, during the Term of Employment or at any
time thereafter, use (other than in the performance of her duties to the
Company) or disclose to any person, firm or corporation (except as may be
required by law or with the prior written approval of the Board) any information
concerning the business, inventions, discoveries, clients, affairs or other
trade secrets of the Company that she may have acquired in the course of, or as
an incident to, her employment by the Company (including her employment, by the
Company and/or any of its affiliates, prior to the date hereof).
(b) The obligations of confidentiality and non-use set forth in
Subsection (a) above shall not apply to information: (i) which is or becomes
published in any written document or otherwise is or becomes a part of the
public domain without breach of the aforementioned obligations by the Employee;
(ii) which the Employee can establish was already in her possession and not
subject to a secrecy obligation at the time she encountered such information in
the course of, or as an incident to, her employment by the Company and/or any of
its affiliates; or (iii) which is required to be
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disclosed by the Employee pursuant to an order of a court of competent
jurisdiction.
(c) As a material inducement for the Company to enter into this
Agreement, and expressly in partial exchange for the performance of the
Company's obligations under this Agreement, the Employee hereby covenants and
agrees that during the Term of Employment and for a period of one (1) year
thereafter, she will not, either on her own account, or directly or indirectly
in conjunction with or on behalf of any person, firm or company:
(i) Solicit or employ, or attempt to solicit or employ, any person who
is then or has, within the six (6) month period prior thereto, been an officer,
director or employee of the Company or any of its affiliates, whether or not
such a person would commit a breach of his or her contract of employment, if
any, by reason of leaving the service of the Company or any of its affiliates;
or
(ii) Solicit the business of any person, firm or company which is then,
or has been, at any time during the preceding six (6) month period prior to such
solicitation, a customer, client, contractor, supplier or agent of the Company
or of any of its affiliates.
(d) As a further material inducement for the Company to enter into this
Agreement, and expressly in partial exchange therefor, the Employee hereby
covenants and agrees that in the event the employment of the Employee hereunder
is terminated "for cause", or in the event the Employee leaves the employ of the
Company in breach of her obligations hereunder, the Employee, for a period of
one (1) year thereafter, shall not carry on or be engaged, concerned or
interested in, or devote any material time to the affairs of, any trade or
business competing with the then trade or business of the Company and which is
then located within the City of New York, Nassau County or Westchester County
and/or within a twenty-five (25) mile radius of any laser surgery center then
owned and/or being operated by the Company.
(e) It is expressly understood and agree that nothing herein contained
shall bar the Company's right to obtain preliminary injunctive relief against
any threatened conduct that is and/or would likely to be, in violation of the
Employee's obligations hereunder, under customary equity rules, including
applicable rules for obtaining restraining orders and preliminary injunctions.
The Employee agrees that the Company may have such injunctive relief, without
bond, but upon due notice, in addition to such further and other relief as may
be available, at equity or law.
7. Notices.
Any notice, request, claim, demand or other communication hereunder to
any party shall be effective upon receipt (or refusal of receipt) and shall be
in writing and delivered personally or sent by telex, telecopy, or certified or
registered mail, return
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receipt requested, postage prepaid, as follows:
(i) If to the Company, addressed to its principal executive offices to
the attention of its General Counsel, with a copy to be simultaneously delivered
to the Chairman of the Board;
(ii) If to the Employee, to her at the address set forth above, with a
copy to be simultaneously delivered c/o Insight Laser Centers, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; or
(iii) at any such other address as either party shall have specified by
written notice given to the other as herein provided.
8. Entire Agreement.
The terms of this Agreement are intended by the parties to be the final
expression of their agreement with respect to the employment of the Employee by
the Company and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this Agreement shall
constitute the complete and exclusive statement of its terms and that no
extrinsic evidence, whatsoever, may be introduced in any judicial,
administrative or other legal proceeding involving this Agreement.
9. Amendments; Waivers.
Except as otherwise set forth herein, this Agreement may not be
modified, amended or terminated except by an instrument, in writing, signed by
the Employee and by the Chairman of the Company's Board. By an instrument in
writing similarly executed, either party may waive compliance by the other party
with any provision of this Agreement that such other party was or is obligated
to comply with or perform; provided, however, that such waiver shall not operate
as a waiver of, or estoppel with respect to, any other or subsequent failure. No
failure to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy or power provided
for herein, or by law, or in equity.
10. Severability; Enforcement.
If any provision of this Agreement, or the application thereof to any
person, place or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable or void, the remainder of this
Agreement and such provisions as applied to other persons, places and
circumstances, shall remain in full force and effect.
11. Assignability.
(a) In the event that the Company shall merge or consolidate with any
other corporation, partnership or business
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entity, or all or substantially all the Company's business or assets shall be
transferred, in any manner, to any other corporation, partnership or business
entity, such successor shall thereupon succeed to, and be subject to, all
rights, interests, duties and obligations of, and shall thereafter be deemed for
all purposes hereof to be, the Company hereunder.
(b) This Agreement is personal in nature, and none of the parties
hereto shall, without the prior written consent of the other, assign or transfer
this Agreement or any of its or her rights or obligations hereunder, except by
operation or law or pursuant to the terms of this Section 11.
(c) Nothing expressed or implied herein is intended or shall be
construed to confer upon, or give to any person, other than the parties hereto,
any right, remedy or claim under, or by reason of, this Agreement, or of any
term, covenant or condition hereof.
12. Restrictive Covenants:
To the extent that a restrictive covenant contained herein may, at any
time, be more restrictive than permitted under the laws of any jurisdiction
where this Agreement may be subject to review and interpretation, the terms of
such restrictive covenant shall be those allowed by law and the covenant shall
be deemed to have been revised accordingly.
13. Governing Law.
The validity, interpretation, enforceability and performance of this
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.
14. Employee's Representation and Acknowledgment.
The Employee hereby represents that she is free to enter into this
Agreement and is not under any contractual restraint which could prohibit her
from satisfactorily performing her duties to the Company hereunder. The Employee
also acknowledges: (i) that she has consulted with or has had the opportunity to
consult with independent counsel of her own choice concerning this Agreement and
has been advised to do so by the Company; and (ii) that she has read and
understands this Agreement, is fully aware of its legal effects and has entered
into it freely, based upon her own judgment.
15. Arbitration.
Any claim, controversy or dispute between the Employee and the Company,
or any employee, director or member of the Company, involving, related to and/or
arising from the construction or application of any of the terms, provisions or
conditions of this Agreement or otherwise arising out of, or related to, this
Agreement, shall be determined by arbitration in accordance with
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the then current commercial arbitration rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrator may be entered
by any court having jurisdiction thereof. The location of the arbitration shall
be Nassau County, New York.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
INSIGHT LASER CENTERS, INC.
By: /s/ Xxxxxx Xxxxx
---------------------------
Title: Xxxxxx Xxxxx
Chairman of the Board
EMPLOYEE
/s/ Xxx Xxxxxxxxx
--------------------------------
Xxx Xxxxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
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