EXHIBIT 10.43
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
July 3, 1997, by and between LaserSight Technologies, Inc., a Delaware
corporation (the "Company"), and J. Xxxxxxx Xxxxxxx, an individual residing, at
the time of entering into this Agreement, in the State of Florida (the
"Executive").
RECITALS
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Whereas, Executive desires to be employed as the Chief Operating Officer of the
Company with a title to be conferred immediately upon assuming the duties of the
position; and
Whereas, the Company desires to retain the Executive as its Chief Operating
Officer of the Company upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants
of the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Employment of the Executive. Subject to the terms and conditions of
this Agreement, the Company hereby employs the Executive, and the Executive
hereby accepts such employment and agrees to perform the services specified
herein.
2. Duties. The Executive shall report to the President of the Company
and have authority and responsibility, in accordance with policies of the
Company, for the operations of the various subsidiaries and departments of the
Company. During the term of his employment hereunder, the Executive shall:
(a) Perform to the best of his ability, those duties
reasonably assigned to him from time to time by the Chief Executive
Officer and the Board of Directors of the Company, provided, however,
that such duties shall be reasonably related to the positions held by
the Executive pursuant hereto;
(b) Devote his full time and first priority business efforts
to the Company's business, provided that nothing herein shall prohibit
Executive from spending reasonable amounts of time for personal
affairs, including, without limitation, serving as a director of
companies, and managing his personal investments, provided Executive
devotes an average minimum of forty (40) hours per week to performing
his duties hereunder; and
(c) Carry out Company policies and directives in a manner
which promotes and develops the Company's best interests.
3. Salary. The Company shall pay Executive an initial base salary
("Base Salary") at an annual rate of One Hundred Twenty Five Thousand Dollars
($125,000.00) which shall be payable in equal installments in accordance with
the Company's customary method of salary payments for senior executives of the
Company (but not less than monthly). The Company may adjust the Base Salary from
time to time.
4. Additional Compensation. Immediately upon execution of this
Agreement, or if later, the date the Executive becomes employed by the Company,
the Executive will be granted Incentive Stock Options (as defined in Section 422
of the Internal Revenue Code) for 80,000 shares of the Company's common stock at
an option price per share equal to the Fair Market Value per share, as defined
in the LaserSight Incorporated ("LSI") 1996 Equity Incentive Plan (the "1996
Equity Incentive Plan"), on the date of grant which shall be July 3, 1997. Such
Incentive Stock Options shall be granted to Executive pursuant to that certain
1996 Equity Incentive Plan. The options for said 80,000 shares shall vest as
follows: (a) 20,000 shares on July 3, 1997, (b) 20,000 shares on July 3, 1998,
(c) 20,000 shares on July 3, 1999, and (d) 20,000 shares on July 3, 2000. Should
Executive's employment end for any reason prior to the time all options are
vested, any and all non-vested options shall terminate and thereafter be
considered null and void.
5. Fringe Benefits. During the term of his employment hereunder, the
Executive shall be entitled to all fringe benefits and perquisites which that
Company from time to time makes available to other senior executives of the
Company, on such terms and levels as are at least commensurate with those
provided to such other senior executives, including, without limitation, health
insurance, vacation, sick days 401K pension contributions and any Local, State
and Federal contributions.
6. Terms of Employment: Severance.
(a) The term of this Agreement shall begin on the date hereof
and shall continue for a period of two (2) years, unless terminated as
provided in this Section 6.
(b) Notwithstanding the foregoing, the Executive's employment
hereunder may be terminated by the Company at any time for Cause (as
defined in Section 9). Company also may terminate Executive's
employment at any time with or without Cause or advance notice.
(c) Notwithstanding the foregoing, the Executive's employment
hereunder shall terminate in the event of his death or Disability (as
defined in Section 9).
(d) Notwithstanding the foregoing, the Executive's employment
hereunder may be terminated by the Executive at any time for Good
Reason (as defined in Section 9) 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 Executive and
obligations of the Company described herein which arise or continue
upon termination of Executive's employment, the following shall apply:
Upon termination of the Executive's employment hereunder for any reason
whatsoever, the Company shall pay to the Executive all salary,
benefits, bonuses and other Compensation (as defined in Section 10)
(including reimbursements) earned through the effective date of
termination.
(f) If the Executive's employment hereunder is terminated by
the Company without Cause, Company shall continue to pay Executive his
Base Salary at its then-current level, for a period of six (6) months
after termination. In addition, Executive shall be entitled to receive
a lump sum payment in an amount equal to the total of Executive's Base
Salary and any bonus compensation received during the immediately
preceding twelve (12) month period if (i) Executive's employment is
terminated for Good Reason pursuant to Section 9(e)(iv), or (ii)
Executive's employment is involuntarily terminated within twelve months
after a Change in Control (as defined herein) or a Change in Ownership
(as defined herein). For purposes of this Agreement, Change in Control
shall mean a change in the composition of the Board of Directors of LSI
which results in a majority of the members thereof being persons who
were not nominated for election as directors by the stockholders at the
prior annual meeting of LSI or a change in the Chief Executive Officer
of LSI and Change in Ownership shall mean that LSI ceases to own at
least a majority of the Company's outstanding voting securities.
7. Restriction Against Competition.
(a) The Executive agrees that while he is employed by the
Company pursuant to this Agreement and during the twelve (12) month
period following the effective date of termination of this Agreement
for any reason, the Executive shall not, directly or indirectly, as a
partner, officer, director, agent, consultant, employee, or otherwise:
(i) engage in any business that competes with
the business of the Company (herein to mean
all Subsidiaries, divisions, and assigns of
the Company) as conducted by the Company as
of the effective date of the termination of
this Agreement in any state where the
Company is conducting business;
(ii) purposefully interfere or attempt to interfere
with any of the Company's contracts 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 employed by the
Company, except that with respect to the twelve (12)
month period following the effective date of termination
of this Agreement, such restriction shall apply only to
such employees employed by Company on the effective date
of termination of this Agreement or within six (6)
months prior thereto;
(iv) purposefully interfere with the business relationship
of or solicit the business or orders of (a) a customer of
the Company, except that with respect to the twelve (12)
month period following the effective date of termination
of this Agreement, such restriction shall apply only to
such customers existing on the effective date of
termination of this Agreement, or within sixty (60)
days prior thereto, or (b) a prospective or potential
customer of the Company, except that with respect to the
two-year period following the effective date of
termination of this Agreement, such restriction shall
apply only to prospective or potential customers (i)
to whom the Company has submitted a formal quotation
within the past one year prior to the effective date of
termination of this Agreement, or (ii) that have been
previously listed or identified in writing by the Company
as a business prospect at any time during the twelve (12)
months preceding the effective date of termination of
this Agreement.
(b) The parties agree that if the Executive commits a breach
of the covenants of this Section 7, 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 such breach would cause irreparable injury to the
parties and that money damages would not provide an adequate remedy therefor.
8. Protection of Confidential Information and Trade Secrets of the
Company.
(a) Confidentiality. During the term of this Agreement and for
a period of twelve (12) months after any termination or expiration
thereof, Executive agrees that he will not use for himself or others or
divulge or convey to others any secrets or confidential information,
knowledge or data of the Company obtained by the Executive during his
employment with the Company. 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 Executive.
(b) Injunctive Relief. The Executive 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 8 will be inadequate, and
that the Company shall be entitled to an injunction or injunctions to
prevent breaches of the provision of paragraph (a) of this Section 8
and to enforce specifically the terms and provisions thereof, in
addition to any other remedy to which the Company may be entitled to by
law or equity.
(c) Return of Document and Other Property. Upon the termination
of the Executive's employment with the Company, or any time upon the
request of the Company, the Executive 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 Executive.
9. Certain Defined Terms. For the 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
executive officer (A) of such Person, (B) of an 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, (1) to vote or direct the voting of more
than 20% of the outstanding voting securities of such Person, or (2) 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 Executive's conviction (including a plea
of nolo contendere) of any crime involving
moral turpitude, the theft or willful
destruction of money or other property of
the Company or any customer or his
conviction of any felony xxxxx.xx;
(ii) The Executive's continuous inability to
perform his responsibilities due to his
habitual abuse of alcohol or prescribed
drugs or any use of illegal drugs;
(iii) The Executive's commission of theft,
embezzlement or fraud against the Company;
(iv) The Executive's willful damage of the Company's
property, business reputation, or good will;
(v) The Executive's deliberate neglect of duty, or
material breach of this Agreement;
(vi) The Executive's refusal to perform any reasonable order
of the Company; or
(vii) The Executive's misrepresentation or concealment of
a material fact for the purpose of securing or
maintaining this Agreement.
The term "Cause" shall not mean any act or omission believed by the Executive to
have been in or not opposed to the best interests of the Company, any act or
omission lacking the intent of the Executive to gain a profit to which he is not
legally entitled, or any other matter not specifically described in clauses (i)
through (vii) above.
(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 arrangement,
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 accrue for the account of such Person
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 Executive to perform the essential
functions of his then regular employment with the Company.
(e) "Good Reason" shall mean:
(i) any material breach or default by the Company of any
material obligation of this Agreement;
(ii) any material change by the Chief Executive Officer or
Board of Directors of the Company in the duties to be
performed or titles to be held by the Executive pursuant
hereto without his prior written consent, which consent
may be reasonably withheld;
(iii) any material reduction in the Executive's salary,
benefits, bonuses or other Compensation pursuant to this
Agreement, unless similar reductions are also made to
the salary, benefits, bonuses or other compensation, as
applicable, payable to other executive officers of the
Company or any Subsidiary or Affiliate thereof and such
reductions are made for justifiable business reasons; or
(iv) within one year after a Change in Control or a Change in
Ownership any of the following occur: (A) Executive's
Base Salary is reduced, (B) any bonus plan in which
Executive participates is discontinued or not continued
in substantially the same form,(C)Executive is assigned
to duties inconsistent with his duties or
responsibilities prior to a Change in Control or Change
in Ownership, or (D)Executive experiences the
discontinuance or reduction of any material fringe
benefits which were in effect before the Change in
Control or Change in Ownership.
(f) "Person" shall mean an individual or 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% of 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.
10. Payment. 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 paid or payable to the
Executive form any source and regardless of any amounts of salary, compensation
or other amounts which would have been payable to Executive had Executive sought
other employment; provided that the Company shall be permitted to make all
payments pursuant to this Agreement net of any legally required tax
withholdings. The Executive shall not be required to seek other employment, and
there shall be no offset to amounts due hereunder as a result of any salary,
compensation or other amount the Executive may be paid from other sources. The
Company shall not be entitled to offset any claim it may have against the
Executive pursuant to the Stock Option Agreement or otherwise against its
obligations to the Executive hereunder.
11. Expenses. In the event of any litigation between the parties
relating to this Agreement and their rights hereunder, the prevailing party, if
any, shall be entitled to recover all litigation costs and reasonable attorney's
fees and expenses from the non-prevailing party.
12. Entire Agreement. This Agreement and the Stock Option Agreement
comprises the entire agreement between the parties hereto and as of the date of
this Agreement, supersedes, cancels and annuls any and all prior agreements
between the parties hereto with respect to the Executive's employment by the
Company.
13. 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 invalid shall,
if possible, be construed in a manner which will give effect to the terms of
such portion to the fullest extent possible while remaining lawful.
14. 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 Executive may not assign,
pledge, or encumber his interest in this Agreement, or any part thereof, without
the written consent of the Company; provided, however, that Executive may,
without the Company's prior consent, assign his rights to payment hereunder.
15. Notice. 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 and registered United States mail, postage prepaid,
by overnight courier, telecopy or when personally delivered, addressed as
follows:
If to the Company:
LaserSight Technologies, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
with a copy to: LaserSight Incorporated
00000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
If to the Executive:
J. Xxxxxxx Xxxxxxx
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
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 (1) business date of the
telecopy.
16. Amendments and Waivers. Any provision of this Agreement may be
amended or waived only with the prior written consent of the Company and the
Executive. No failure or delay on the part of either party to this Agreement in
the exercise of any provision or right, and no course of dealing between the
parties hereto, shall operate as a waiver of such power or right.
The signatories affirm that they have the authority to execute this Agreement
and do so willingly.
LASERSIGHT TECHNOLOGIES, INC.
/s/Xxxxxxx X. Xxxxxx
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Executed November 9, 1999
By: Chief Executive Officer
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/s/J. Xxxxxxx Xxxxxxx
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J. Xxxxxxx Xxxxxxx
