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EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") dated effective as of May
1, 1996, is entered into between VISTA LASER CENTERS OF THE PACIFIC, INC.
(VLC-PAC) (the "Employer"), and XXXXX X. XXXXX III (the "Employee") in reference
to the following facts:
R E C I T A L S:
A. Employer owns and operates centers which provide refractive eye
surgery to patients on an outpatient basis (the "Centers").
B. Employee has extensive experience in connection with the management
of outpatient medical offices, and specifically those devoted to the treatment
of diseases of the eye.
C. The parties desire that Employee act as President and Chief
Operating Officer of Employer, and generally to manage operations of the
Centers, pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. EMPLOYMENT.
1.1 DUTIES. The Employer hereby employs Employee and Employee
agrees to provide services to Employer as an employee upon the terms and
conditions set forth in this Agreement Employee shall serve as the President and
Chief Operating Officer of Employer. Employee shall do and perform all such
services, acts and duties as are customary for his position. Employee shall
additionally provide such services as the Chairman and Chief Executive Officer
of the Employer may reasonably assign him from time to time.
1.2 LOYALTY. Employee shall at all times be loyal to the
interests of Employer, and he shall not be involved in or take any action or
actions, either directly to indirectly, which would be detrimental to Employer
or its business or properties, including without limitation: (1) during the term
of employment hereunder, competing in any way with Employer; (2) during the term
of employment hereunder, rendering any assistance or cooperating with, or
engaging in any employment relationship with, or obtaining or maintaining any
ownership interest in, any competitor of Employer; or (3) whether during or
after the term of his employment hereunder, disclosing to anyone, other than an
authorized employee or director of Employer, or making use of, other than in the
proper conduct of his duties as an employee hereunder, any trade secrets or
proprietary or confidential information of the Employer, except as disclosure
may be required by law or legal process (provided, however, Employee shall give
notice to Employer before making any disclosure Employee believes is required by
law or legal process in order to afford Employer a reasonable opportunity to
object to such disclosure and to seek injunctive relief in connection
therewith). Upon termination of his employment hereunder by Employer, Employee
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agrees to promptly deliver to Employer all of its records and confidential
information which is in his possession and control.
1.3 AUTHORITY. Employee's authority to act on behalf of the
Employer and to bind the Employer shall be subject to any relevant provisions of
the Employer By-Laws, as amended from time to time.
1.4 FIDELITY BOND. Employee's continued employment by Employer
is conditioned on Employee's continuing eligibility for a fidelity bond. If
Employee becomes ineligible for a fidelity bond, The Employer shall have the
right to terminate Employee's employment immediately with cause.
2. COMPENSATION. For all services rendered by Employee in any capacity
hereunder during the term of this Agreement, the Employer shall pay Employee
compensation determined as follows:
2.1 BASE COMPENSATION. The Employer shall pay Employee base
compensation equal to $110,000 per year (paid bi-weekly) during the term of this
Agreement.
2.2 ADDITIONAL COMPENSATION. Employee shall also be entitled
to receive a year end bonus equal to 50% of base compensation. The year end
bonus will be based on accomplishment of specific goals established by Employer
within the first 60 days of each year of employment.
2.3 STOCK OPTIONS. Employee will be granted stock options for
50,000 shares of VLC-PAC stock on the exact terms as those options granted to
the Chairman and Chief Executive Officer of Employer.
2.4 FRINGE BENEFITS. Employee shall be entitled to receive the
fringe benefits extended to all other full time employees of the Employer.
Fringe benefits may include paid vacation, disability insurance, health
insurance, etc.
2.5 SEVERANCE BENEFIT. Upon termination of Employee's
employment for any reason other than pursuant to Paragraphs 5.1 or 5.3 of this
Agreement, Employee shall be entitled to receive compensation pursuant to
Paragraphs 2.1 and 2.2 above for a period of twelve months following Employee's
last day of employment.
3. TERM. The term of employment hereunder shall commence on May 1,
1996, and shall continue through May 1,1998 (the "Expiration Date"), and from
year to year thereafter, unless terminated earlier pursuant to Section 5 of this
Agreement.
4. EXPENSES. Employee shall be entitled to reimbursement for reasonable
expenses of travel and lodging incurred on behalf of the Employer in accordance
with the Employer's policy in effect at the time of the expenditure. Employee
shall be entitled to attend professional conferences only if approved by the
Employer. Employee shall be entitled to reasonable expenses in connection with
the attendance of such conference or conferences, as the case may be, including
but not limited to travel, lodging, and tuition.
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5. TERMINATION.
5.1 EVENTS RESULTING IN TERMINATION. Employee's employment
shall terminate upon the occurrence of any of the following events:
5.1.1. The resignation, retirement, or death of the
Employee.
5.1.2. At the option of the Employer, upon the
disability of Employee, which disability continues for a period of more than 90
days from the date the disability commences. Employee shall be deemed to be
"disabled" if Employee is unable to perform substantially all of his duties
hereunder due to illness, accident, or injury, as determined by the Employer, in
his reasonable discretion.
5.2 NON-RENEWAL. This Agreement shall not be renewed if either
party provides the other party with prior written notice of such party's intent
not to renew this Agreement upon the Expiration Date or any anniversary thereof,
as the case may be, which written notice is given at least 30 days prior to the
Expiration Date or the anniversary thereof, as the case may be.
5.3 TERMINATION FOR CAUSE. Employer may at any time terminate
Employee's employment immediately upon notice for cause. For purposes of this
Agreement, "cause" shall be defined as: (1) a material failure to perform any of
the material obligations under this Agreement or any of the material
responsibilities of Employee to Employer, including without limitation conduct
injurious to the interest of Employer or failure in any substantial respect to
perform any reasonable and lawful executive or senior management duty assigned
to Employee by the Employer; (2) any illegal, immoral, or dishonest act or
omission by Employee which could result in damages to Employer; (3) intentional
nonperformance by Employee of any of his material duties to Employer; (4)
habitual neglect of duty; (5) commission by Employee of any serious criminal
act, fraud, or dishonesty, whether or not related to the performance of his
duties hereunder; or (6) inability for any reason to fully perform the material
obligations of Employee to Employer for a continuous period of 60 days.
5.4 COMPENSATION. Except as provided in Paragraph 2.5, upon
termination of Employee's employment, Employee shall be entitled to receive only
that compensation earned through the last full day worked by Employee. Further,
Employee shall be entitled to receive only those Employer-sponsored benefits to
which he was entitled on the date of such termination or, if such benefits are
determined on an annual basis, the pro rata portion of those benefits accrued
through the last day actually worked by Employee.
5.5 SURVIVAL OF CERTAIN PROVISIONS. Notwithstanding the
termination of Employee's employment, the parties shall be required to carry out
any provisions hereof which contemplate performance by them subsequent to
termination; nor shall such termination affect any liability or obligation which
shall have accrued prior to such termination, including but not limited to any
liability for loss or damage on account of default.
6. MISCELLANEOUS.
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6.1 APPLICABLE LAW. This Agreement shall be interpreted and
enforced pursuant to the laws of the State of California.
6.2 NOTICES. Any notice to be given hereunder by one party to
the other shall be deemed given upon personal delivery or two business days
after deposit in the United States mail, postage prepaid, first-class, addressed
to the party at the address below their signature. Each party may change the
address for such notice in accordance with this paragraph.
6.3 ENTIRE AGREEMENT AND AMENDMENT. This Agreement supersedes
all other agreements, oral or written, between the parties with respect to
employment of Employee, and contains all of the covenants and agreements between
the parties with respect thereto. Each party to this Agreement acknowledges that
no representations, inducements, promises, or agreements, oral or otherwise,
shall be binding on any party, or anyone acting on behalf of any party, unless
expressly set forth herein. Any modification or amendment of this Agreement
shall be effective only if in writing and signed by both of the parties hereto.
6.4 SEVERABILITY. If any provision of this Agreement is held
to be or deemed to be unenforceable or invalid, the remaining portions shall
nevertheless continue in full force and effect.
6.5 WAIVER. The failure from time to time of the Employer to
require performance of any obligation hereunder shall in no way affect the
Employer's right to enforce any provision of this Agreement at a subsequent
time, and the waiver by the Employer of one breach hereof, shall not be
construed as waiver of any subsequent breach.
6.6 PARTIES BOUND. No right or rights hereunder may be
assigned without the prior written consent of the other party. This Agreement
shall inure to the benefit of and shall be binding upon the heirs, successors,
personal representatives and assigns of each of the parties hereto.
6.7 DISPUTE RESOLUTION. The parties shall attempt to settle
any controversy or claim arising out of or related to this Agreement, or the
breach thereof, including any dispute regarding the validity or scope of this
agreement, in an amicable manner by mediation under the Commercial Mediation
Rules of the American Arbitration Association. If the parties are unable to
resolve their disputes by mediation, the disputes shall be settled and decided
by one arbitrator pursuant to arbitration conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("Rules"),
as then in effect, unless the parties hereto mutually agree otherwise in
writing. Any such arbitration shall be held and conducted in Alameda County,
California, within 90 days of the appointment of the arbitrator, in accordance
with the provisions set forth in said Rules. The award rendered by the
arbitrator shall be final, and judgment may be entered upon it in accordance
with applicable law in any court having jurisdiction thereof. The demand for
arbitration shall be made within a reasonable time after the claim, dispute, or
other matter in question has arisen. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute, or other matter in question would be
barred by the applicable statute of limitations. The prevailing party in any
arbitration hereunder shall be awarded reasonable counsel fees, expert and
non-expert witness costs and expenses, and all other costs and
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expenses incurred directly or indirectly in connection with said arbitration
unless the arbitrator for good cause determines otherwise in his order, in which
event the prevailing party shall pay all of its own costs, expenses, and fees.
The provisions of Title 9 of Part 3 of the California Code of Civil Procedure,
including Section 1283.05 thereof permitting expanded discovery proceedings,
shall be applicable to all disputes or controversies which are arbitrated
pursuant to this Agreement.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first written above.
EMPLOYER EMPLOYEE:
VISTA LASER CENTERS OF THE PACIFIC, INC.
By:_________________________________________ ____________________________
J. XXXXXX XXXXXXX, M.D. XXXXX X. XXXXX III
Chairman and Chief Executive Officer
Address: Address:
000 Xxxxxx Xxxxxx 000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxxx 00000
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