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EMPLOYMENT AGREEMENT
BETWEEN
XXXX XXXXX
AND
TLC THE LASER CENTER INC.
MADE AS OF
September 1, 1997
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EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of September 1, 1997;
B E T W E E N:
Xxxx Xxxxx
(hereinafter referred to as the "Employee"),
OF THE FIRST PART,
- and -
TLC The Laser Center Inc., a corporation incorporated under the laws
of the Province of Ontario, Canada (hereinafter referred to as the
"Employer"),
OF THE SECOND PART.
THIS AGREEMENT WITNESSES that in consideration of the covenants and
agreements herein contained the parties hereto agree as follows:
ARTICLE ONE - EMPLOYMENT
1.1 Employment
Subject to the terms and conditions herein contained, the Employee shall
be employed by the Employer as Executive Vice President of the Employer, and
shall perform such duties and exercise such powers related thereto as may from
time to time be assigned to him by the Employer.
1.2 Term of Employment
The employment of the Employee hereunder shall commence on September 1,
1997 and shall be for a period of five (5) years to terminate on August 30,
2002, subject to any renewal of this Agreement pursuant to Section 5.1 and
subject to earlier termination of this Agreement pursuant to Sections 4.1 and
4.2.
1.3 Place of Employment
The Employee shall perform his work and services for the Employer or for
an Affiliate (which includes any parent, subsidiary or other corporation
associated or affiliated with the Employer, including without limitation, 20/20
Laser Centers, Inc. ("20/20")) as may be designated by the Employer from time to
time in Bethesda, Maryland.
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ARTICLE TWO - REMUNERATION
2.1 Salary
The Employer shall pay the Employee during the term of this Agreement a
gross annual salary of $U.S.220,000.00 payable bi-weekly in arrears. Such salary
shall be reviewed by the parties annually during each anniversary date of this
Agreement and any changes in such salary shall be as agreed upon in writing
between the parties.
2.2 Benefits
The Employee will be entitled to participate in the benefit plans
generally available to employees of the Employer and/or 20/20 Laser Centers,
Inc. in effect from time to time. The Employee acknowledges receiving a written
summary of the terms of such benefit plans. The Employee shall be entitled to
receive stock options on December 1, 1997 in accordance with the Employer's
Stock Option Plan as a senior management employee, but shall not be entitled to
participate in such Plan in any year thereafter.
2.3 Vacation
During the term of this Agreement the Employee shall be entitled to four
weeks vacation per annum. Such vacation shall be taken at a time or times
acceptable to the Employer having regard to its operations.
2.4 Expenses
The Employee shall be reimbursed for all authorized travelling and other
out-of-pocket expenses actually and properly incurred by him in connection with
his duties hereunder. For all such expenses the Employee shall furnish to the
Employer statements and vouchers as and when required by the Employer.
ARTICLE THREE - EMPLOYEE'S COVENANTS
3.1 Service
The Employee shall devote the whole of his time, attention and ability to
the business of the Employer or to the business of any other person as
authorized by the Employer and shall well and faithfully serve the Employer and
shall use his best efforts to promote the interests of the Employer, provided
however, that the Employee shall be entitled to serve on, and receive
compensation from, boards of directors and advisory boards for other companies
so long as such duties do not conflict with or interfere with his duties for the
Employer.
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3.2 Duties and Responsibilities
The Employee shall duly and diligently perform all the duties assigned to
him while in the employ of the Employer, and shall truly and faithfully account
for and deliver to the Employer all money, securities and things of value
belonging to the Employer which the Employee may from time to time receive for,
from or on account of the Employer.
3.3 Rules and Regulations
The Employee shall be bound by and shall faithfully observe and abide by
all the rules and regulations of the Employer from time to time in force which
are brought to his notice or of which he should reasonably be aware.
3.4 Non-Disclosure
The Employee shall not (either during the continuance of the employment or
at any time thereafter) disclose any information relating to the private or
confidential affairs of the Employer or relating to any secrets of the Employer
to any person other than for the Employer's purposes and, without limiting the
generality of the foregoing, the Employee shall not (either during the
continuance of the employment or at any time thereafter) disclose to any person
other than for the Employer's purposes and shall not (either during the
continuance of the employment or at any time thereafter) use for his own
purposes or for any purposes other than those of the Employer any such
information or secrets he may acquire in relation to the business of the
Employer.
3.5 Non-Competition
(1) The Employee shall not, without the prior written consent of the
Employer, at any time for a period of eighteen (18) months following the date of
termination of this Agreement for whatever reason and with or without cause,
either individually or in partnership or jointly or in conjunction with any
person as principal, agent, employee, shareholder (other than a holding of
shares listed on a Canadian or United States stock exchange that does not exceed
two percent (2%) of the outstanding shares so listed) or in any other manner
whatsoever carry on or be engaged in or be concerned with or interested in or
advise, lend money to, guarantee the debts or obligations of or permit his name
or any part thereof to be used or employed by any person engaged in or concerned
with or interested in within North America in the business of internet
electronic commerce (as conducted by the Employer in the eye care or health care
industry at the time of the Employee's termination of employment) or laser
vision correction services (the "Business"). The parties acknowledge, however,
that Employee may be employed by a company such as an advertising agency, an
accounting firm, a law firm, or consulting firm or similar type of company or
firm that has clients who are in the Business so long as the total annual
xxxxxxxx attributable to the client or clients in the Business do not exceed 25%
of the total annual xxxxxxxx of the employer company or firm.
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(2) The Employee confirms that all restrictions in Section 3.5(1) are
reasonable and valid and all defences to the strict enforcement thereof by the
Employer are waived by the Employee.
3.6 Inventions and Patents
In the event the Employee contributes to any patentable invention arising
out of or in the course of his employment hereunder, any such patentable
invention shall be the exclusive property of the Employer and the Employer shall
have the exclusive right to file patent applications in the name of the Employer
in connection therewith and the Employee shall cooperate with the Employer and
provide all necessary assistance in the filing and prosecution of such patent
applications.
ARTICLE FOUR - TERMINATION OF EMPLOYMENT
4.1 Termination by Employer for Cause
The Employer may terminate this Agreement at any time for cause without
payment of any compensation either by way of anticipated earnings or damages of
any kind. For purposes of this Agreement, "cause" shall be any of the following:
(i) conviction of a felony; (ii) breach of fiduciary duty; (iii) breach of this
agreement; or (iv) failure to perform stated duties. The phrase "failure to
perform stated duties" is not intended to refer to a subjective evaluation of
performance, but rather is intended to refer to the employee's unwillingness to
perform a duty that has been clearly stated as being part of his/her
responsibilities.
4.2 Termination by Employer or Employee on Notice; Severance
The Employer or the Employee may terminate this Agreement upon the giving
of six months written notice to the other party. Notwithstanding the foregoing,
the Employer may terminate this Agreement immediately upon paying to the
Employee six months' salary in lieu of such notice and upon making the benefit
plan contributions or otherwise providing for full benefits during the six month
period following an immediate termination. The Employee agrees that the Employer
may deduct from any payment of salary in lieu of notice hereunder the Employee's
benefit plan contributions which were regularly made during the term of this
Agreement in accordance with the terms of all benefit plans to be maintained
hereunder for the minimum period prescribed by law. In the event the Employer
terminates the Employee for cause (as defined above), then the Employee shall
not be entitled to any notice or severance salary or benefits.
4.3 Fair and Reasonable
The parties confirm that the notice and pay in lieu of notice provisions
contained in Section 4.2 are fair and reasonable and the parties agree that upon
any termination of this Agreement by the Employer in compliance with Sections
4.1 or 4.2 or upon any termination of this Agreement by the Employee, the
Employee shall have no action, cause of action, claim or demand against the
Employer or any other person as a consequence of such termination other than a
claim for salary and benefits until the effective date of such termination.
4.4 Return of Property
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Upon any termination of this Agreement the Employee shall at once deliver
or cause to be delivered to the Employer all books, documents, effects, money,
securities or other property belonging to the Employer or for which the Employer
is liable to others, which are in the possession, charge, control or custody of
the Employee.
4.5 Provisions which Operate Following Termination
Notwithstanding any termination of this Agreement for any reason
whatsoever and with or without cause, the provisions of Sections 3.4, 3.5, 3.6
and 4.4 of this Agreement and any other provisions of this Agreement necessary
to give efficacy thereto shall continue in full force and effect following such
termination.
ARTICLE FIVE - RENEWAL OF AGREEMENT
5.1 This Agreement shall continue for successive periods of one year's duration
beyond the original term described in Section 1.2 (subject to the termination
provisions set forth in Section 4 hereof) on the same terms and conditions of
employment or on such terms and conditions of employment as are agreed upon in
writing between the parties unless either party has given the requisite notice
to terminate under Article Four hereof.
ARTICLE SIX - GENERAL
6.1 Sections and Headings
The division of this Agreement into Articles and Sections and the
insertion of headings are for the convenience of reference only and shall not
affect the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof and
include any agreement or instrument supplemental or ancillary hereto. Unless
something in the subject matter or context is inconsistent therewith, references
herein to Articles and Sections are to Articles and Sections of this Agreement.
6.2 Number
In this Agreement words importing the singular number only shall include
the plural and vice versa and words importing the masculine gender shall include
the feminine and neuter genders and vice versa and words importing persons shall
include individuals, partnerships, associations, trusts, unincorporated
organizations and corporations and vice versa.
6.3 Benefit of Agreement
This Agreement shall enure to the benefit of and be binding upon the
heirs, executors, administrators and legal personal representatives of the
Employee and the successors and permitted assigns of the Employer, respectively.
6.4 Entire Agreement
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This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and cancels and supersedes any prior
understandings and agreements between the parties hereto with respect thereto.
There are no representations, warranties, terms, conditions, undertakings or
collateral agreements, express, implied or statutory between the parties other
than as expressly set forth in this Agreement.
6.5 Amendments and Waivers
No amendment to this Agreement shall be valid or binding unless set forth
in writing and duly executed by both of the parties hereto. No waiver of any
breach of any provision of this Agreement shall be effective or binding unless
made in writing and signed by the party purporting to give the same and, unless
otherwise provided in the written waiver, shall be limited to the specific
breach waived.
6.6 Severability
If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall
attach only to such provision or part thereof and the remaining part of such
provision and all other provisions hereof shall continue in full force and
effect.
6.7 Notices
Any demand, notice or other communication (hereinafter in this Section 6.8
referred to as a "Communication") to be given in connection with this Agreement
shall be given in writing and may be given by personal delivery or by registered
mail addressed to the recipient as follows:
To the Employee:
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX
00000
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To the Employer:
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxx
Xxxxxx X0X0X0
Attention: General Counsel
or such other address or individual as may be designated by notice by either
party to the other. Any Communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof
and, if made or given by registered mail, on the 5th day, other than a Saturday,
Sunday or statutory holiday in Ontario, following the deposit thereof in the
mail. If the party giving any Communication knows or ought reasonably to know of
any difficulties with the postal system which might affect the delivery of mail,
any such Communication shall not be mailed but shall be given by personal
delivery.
6.8 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Maryland and the federal laws of the United States of
America applicable therein.
6.9 Copy of Agreement
The Employee hereby acknowledges receipt of a copy of this Agreement duly
signed by the Employer.
IN WITNESS WHEREOF the parties have executed this Agreement.
SIGNED, SEALED AND DELIVERED )
)
in the presence of: )
)
)
/s/ X. X. Xxxxxx ) /s/ Xxxx Xxxxx (s)
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Witness ) Xxxx Xxxxx
TLC THE LASER CENTER INC.
By: /s/ X. X. Xxxxx
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