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EXHIBIT 10.64
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of the 8th day of
February, 1999 (the "Agreement"), by and between VISION TWENTY-ONE, INC., a
Florida corporation (the "Company"), and XXXXXX X. XXXXXXX (the "Executive").
WHEREAS, the Company is presently engaged in the business of
providing physician practice management services and related services to
ophthalmologists, optometrists and other eye care providers;
WHEREAS, the Executive has extensive management experience and
is willing to serve as Executive Vice President and the Chief Operating Officer
of the Company;
WHEREAS, the Company wishes to assure itself of the services
of the Executive for the period provided in this Agreement and the Executive is
willing to serve in the employ of the Company for such period upon the terms and
conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Company hereby agrees to continue to employ the Executive
upon the terms and conditions herein contained, and the Executive hereby agrees
to accept such employment for the term described below. The Executive agrees to
serve as the Company's Chief Operating Officer and Executive Vice President and
to perform the duties and functions customarily performed by the Chief Operating
Officer of a publicly traded corporation during the term of this Agreement. In
such capacity, the Executive shall have such powers and responsibilities
consistent with his position as the Chief Executive Officer and Board of
Directors may assign to him.
Throughout the term of this Agreement, the Executive shall
devote his best efforts and substantially all of his business time and services
to the business and affairs of the Company.
2. TERM OF AGREEMENT
The five (5) year initial term of employment under this
Agreement shall commence as of February 8, 1999 (the "Effective Date"). After
the expiration of such five year initial employment period, the term of the
Executive's employment hereunder shall automatically be extended without further
action by the parties for successive one (1) year renewal terms, provided that
if either party gives the other party at least thirty (30) days advance written
notice of his or its intention to not renew this Agreement for an additional
term, the Agreement shall terminate upon the expiration of the current term.
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Notwithstanding the foregoing, the Company shall be entitled
to terminate this Agreement immediately, subject to a continuing obligation to
make any payments required under Section 5 below, if the Executive (i) becomes
disabled as described in Section 5(b), (ii) is terminated for Cause, as defined
in Section 5(c), or (iii) voluntarily terminates his employment before the
current term of this Agreement expires, as described in Section 5(d).
3. SALARY AND BONUS
The Executive shall receive a base salary during the term of
this Agreement at a rate of not less than $215,000 per annum, payable in
biweekly installments consistent with the Company's normal payroll schedule. The
Compensation Committee of the Board shall consult with the Chief Executive
Officer and review this base salary at annual intervals, and may adjust the
Executive's annual base salary from time to time as the Committee deems to be
appropriate.
The Executive shall also be eligible to receive an annual
incentive bonus from the Company for each fiscal year of the Company during the
term of this Agreement. If the Company has fully achieved such financial and
operational performance targets as may be set for the fiscal year by the
Compensation Committee, the amount payable to the Executive shall be 50 percent
of his annual base salary in effect on the last day of the year. If the Company
fails to fully achieve its performance targets for the fiscal year, the portion
of such bonus, if any, which shall be paid to the Executive shall be such amount
as may be determined to be appropriate by the Compensation Committee of the
Company's Board, based on the Company's partial achievement of the performance
measures. If, for any fiscal year of the Company, the annual bonus anticipated
to be payable for such fiscal year, when added to the Executive's base salary
and other remuneration from the Company for such fiscal year, is expected to
cause the total remuneration to the Executive for such fiscal year to exceed
$1,000,000, the Company's Compensation Committee shall follow the following
procedures with respect to any bonus payable for such fiscal year:
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(1) The performance goals for such bonus shall be
determined and approved by the Compensation Committee of the Board of
the Company, which for this purpose, shall be comprised solely of two
or more outside directors, during the first sixty (60) days of such
fiscal year;
(2) The material terms under which such annual bonus is
to be paid, including the performance goals, shall be disclosed to
shareholders and approved by a majority of the vote in a separate
shareholder vote before payment of such bonus is made;
(3) Before any payment of such annual bonus, the
Compensation Committee of the Board referred to above must certify that
the performance goals and any other material terms were in fact
satisfied.
The provisions of this paragraph are intended to comply with and shall be
interpreted in accordance with the requirements of Section 162(m) of the
Internal Revenue Code, and accordingly, if the Compensation Committee of the
Board follows the foregoing requirements and the annual bonus is disapproved by
the Compensation Committee of the Board or the shareholders in accordance with
said requirements, the Executive shall not be paid the performance-based portion
of the bonus for the fiscal year at issue, to the extent such performance-based
portion of the bonus causes the Executive's total applicable remuneration to
exceed $1,000,000 for the fiscal year at issue.
4. ADDITIONAL COMPENSATION AND BENEFITS
The Executive shall receive the following additional
compensation and welfare and fringe benefits:
(a) Stock Options. As of the Effective Date of this
Agreement, the Executive shall be granted nonstatutory stock options
with respect to 75,000 shares of common stock pursuant to the terms of
the Company's 1996 Stock Incentive Plan, with options to vest in a
series of five equal annual installments with the fifth and final
installment vesting on the fifth anniversary of the grant date. During
the remaining term of the Agreement, any additional stock option or
restricted stock awards under the 1996 Stock Incentive Plan shall be at
the discretion of the Compensation Committee of the Company's Board.
(b) Medical Insurance. The Company shall provide the
Executive and his dependents with health insurance coverage no less
favorable than that from time to time made available to other key
employees.
(c) Business Expenses. The Company shall reimburse the
Executive for all reasonable expenses he incurs in promoting the
Company's business, including expenses for travel, entertainment of
business associates and similar items, upon presentation by the
Executive from time to time of an itemized account of such
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expenditures. After commencement of employment, a corporate American
Express card and Hertz Credit Card will be issued to the Executive.
(d) Disability Insurance. Until such time as the Company
has established a long-term disability program for executives, the
Company shall reimburse the Executive for the monthly premiums he pays
to maintain his existing long-term disability insurance policy in force
at the current level of coverage.
(e) Automobile. The Company will provide the Executive
with the use of a new leased automobile. The Executive may select the
make and model desired, up to a maximum monthly lease payment
(including taxes) of $700. The Company will also cover the costs of
routine maintenance, fuel and liability insurance for the leased
vehicle. The Executive will be responsible for appropriately reporting
his personal use of the vehicle for income tax purposes.
(f) Relocation Assistance. Since the Company is asking
the Executive to relocate his residence from Alpharetta, Georgia to the
Tampa-St. Petersburg metropolitan area, the Executive will receive the
relocation allowance and benefits described on the attached Schedule A.
(g) Vacation The Executive shall be entitled to 4 weeks
of vacation during each year during the term of this Agreement and any
extensions thereof, prorated for partial years.
In addition to the benefits provided pursuant to the preceding
paragraphs of this Section 4, the Executive shall be eligible to participate in
such other executive compensation and retirement plans of the Company as are
applicable generally to other executive officers, and in such welfare benefit
plans, programs, practices and policies of the Company as are generally
applicable to other executive officers.
5. PAYMENTS UPON TERMINATION
(a) Involuntary Termination. If the Executive's
employment is terminated by the Company during the term of this Agreement, the
Executive shall be entitled to receive his base salary accrued through the date
of termination. The Executive shall also receive any nonforfeitable benefits
already earned and payable to him under the terms of any deferred compensation,
incentive or other benefit plan maintained by the Company, payable in accordance
with the terms of the applicable plan.
If the termination is not for death, disability as described
in paragraph (b), for Cause as described in paragraph (c) or a voluntary
termination by the Executive as described in paragraph (d), the Company shall
also be obligated to make a series of monthly payments to the Executive for each
month during the remaining term of this Agreement, but not less than twelve (12)
months, or twenty-four (24) months if the termination occurs after the first 90
days of the Executive's employment under this Agreement. Each monthly payment
shall be equal to one-twelfth (1/12th) of the Executive's annual base salary, as
in
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effect on the date of termination. For each month that the Company is obligated
to make a monthly payment as provided in the preceding sentence of this
paragraph 5(a), the Company shall also continue the Additional Compensation and
Benefits set forth in paragraph 4(b), (d) and (e) (or, in the case of the
automobile described in 4(e), at the Company's election, the full value of such
benefit in cash), and the Executive shall be allowed to continue participation
in such other executive compensation and retirement plans as may then be offered
to other executive officers, unless prohibited by the applicable plan provisions
or by law.
(b) Disability. The Company shall be entitled to
terminate this Agreement, if the Board determines that the Executive has been
unable to attend to his duties for at least ninety (90) days because of a
medically diagnosable physical or mental condition, and has received a written
opinion from a physician acceptable to the Board that such condition prevents
the Executive from resuming full performance of his duties and is likely to
continue for an indefinite period. Upon such termination, the Company shall pay
to Executive a monthly disability benefit equal to one-twenty-fourth (1/24th) of
his current annual base salary at the time he became permanently disabled.
Payment of such disability benefit shall commence on the last day of the month
following the date of the termination by reason of permanent disability and
cease with the earliest of (i) the month in which the Executive returns to
active employment, either with the Company or otherwise, (ii) the end of the
initial term of this Agreement, or the current renewal term, as the case may be,
or (iii) the twenty-fourth month after the date of the termination. Any amounts
payable under this Section 5(b) shall be reduced by any amounts paid to the
Executive under any long-term disability plan or other disability program or
insurance policies maintained or provided by the Company.
(c) Termination for Cause. If the Executive's employment
is terminated by the Company for Cause, the amount the Executive shall be
entitled to receive from the Company shall be limited to his base salary accrued
through the date of termination, and any nonforfeitable benefits already earned
and payable to the Executive under the terms of deferred compensation or
incentive plans maintained by the Company.
For purposes of this Agreement, the term "Cause" shall be
limited to (i) any action by the Executive involving willful disloyalty to the
Company, such as embezzlement, fraud, misappropriation of corporate assets or a
breach of the covenants set forth in Sections 9 and 10 below; or (ii) the
Executive being convicted of a felony; or (iii) the Executive being convicted of
any lesser crime or offense committed in connection with the performance of his
duties hereunder or involving moral turpitude; or (iv) the intentional and
willful failure by the Executive to substantially perform his duties hereunder
as directed by the Chief Executive Officer or the Board (other than any such
failure resulting from the Executive's incapacity due to physical or mental
disability).
(d) Voluntary Termination by the Executive. If the
Executive resigns or otherwise voluntarily terminates his employment before the
end of the current term of this Agreement, the amount the Executive shall be
entitled to receive from the Company shall be limited to his base salary accrued
through the date of termination, and any nonforfeitable
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benefits already earned and payable to the Executive under the terms of any
deferred compensation or incentive plans of the Company.
For purposes of this paragraph, a resignation by the Executive
shall not be deemed to be voluntary if the Executive resigns during the period
of three months after the date he is (1) assigned to a position of lesser rank
(other than for Cause, or by reason of permanent disability), (2) assigned
duties materially inconsistent with such position, or (3) directed to report to
anyone other than the Company's Chief Executive Officer or Board of Directors.
6. EFFECT OF CHANGE IN CORPORATE CONTROL
(a) In the event of a Change in Corporate Control, the
vesting of any stock options or other awards granted to the Executive under the
terms of the Company's 1996 Stock Incentive Plan shall become immediately vested
in full and, in the case of stock options, exercisable in full.
In addition, if, at any time during the period of twelve (12)
consecutive months following the occurrence of a Change in Corporate Control,
the Executive is involuntarily terminated (other than for Cause) by the Company,
the Executive shall be entitled to receive as severance pay in lieu of the
monthly payments described in Section 5(a) above, a series of twenty-four (24)
equal monthly payments, each equal to one-twelfth (1/12th) of the sum of (i) the
Executive's annual base salary in effect at the time of the Change in Corporate
Control plus (ii) the annual bonus paid to the Executive with respect to the
last fiscal year of the Company ending prior to the Change in Corporate Control.
(b) For purposes of this Agreement, a "Change in
Corporate Control" shall include any of the following events:
(1) The acquisition in one or more transactions
of more than thirty percent of the Company's outstanding Common Stock
by any corporation, or other person or group (within the meaning of
Section 14(d)(3) of the Securities Exchange Act of 1934, as amended);
(2) Any merger or consolidation of the Company
into or with another corporation in which the Company is not the
surviving entity, or any transfer or sale of substantially all of the
assets of the Company or any merger or consolidation of the Company
into or with another corporation in which the Company is the surviving
entity and, in connection with such merger or consolidation, all or
part of the outstanding shares of Common Stock shall be changed into or
exchanged for other stock or securities of any other person, or cash,
or any other property.
(3) Any election of persons to the Board of
Directors which causes a majority of the Board of Directors to consist
of persons other than (i) persons who were members of the Board of
Directors on February 1, 1999, and (ii)
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persons who were nominated for election as members of the Board by the
Board of Directors (or a Committee of the Board) at a time when the
majority of the Board (or of such Committee) consisted of persons who
were members of the Board of Directors on February 1, 1999; provided,
that any person nominated for election by the Board of Directors
composed entirely of persons described in (i) or (ii), or of persons
who were themselves nominated by such Board, shall for this purpose be
deemed to have been nominated by a Board composed of persons described
in (i).
(4) Any person, or group of persons, announces a
tender offer for at least thirty percent (30%) of the Company's Common
Stock.
provided that, no acquisition of stock by any person in a public offering or
private placement of the Company's common stock approved by the Company's Board
of Directors, shall be considered a Change in Corporate Control, and further
provided that, for purposes of this Agreement, a reverse merger of the Company
into another corporation or similar transaction shall not be considered to be a
Change in Corporate Control unless it results in either (1) the appointment of
someone other than Xxxxxxxx Xxxxxxxx as the CEO of the surviving corporation or
(2) a majority of the Board of Directors of the surviving corporation consisting
of persons who were not members of the Company's Board of Directors immediately
prior to the transaction.
(c) Notwithstanding anything else in this Agreement, the
amount of severance compensation payable to the Executive as a result of a
Change in Corporate Control under this Section 6, or otherwise, shall be limited
to the maximum amount the Company would be entitled to deduct pursuant to
Section 280G of the Internal Revenue Code of 1986, as amended.
7. DEATH
If the Executive dies during the term of this Agreement, the
Company shall pay to the Executive's estate a lump sum payment equal to the sum
of the Executive's base salary accrued through the date of death plus the total
unpaid amount of any bonuses earned with respect to the fiscal year of the
Company most recently ended. In addition, the death benefits payable by reason
of the Executive's death under any retirement, deferred compensation or other
employee benefit plan maintained by the Company shall be paid to the beneficiary
designated by the Executive in accordance with the terms of the applicable plan
or plans.
8. WITHHOLDING
The Company shall, to the extent permitted by law, have the
right to withhold and deduct from any payment hereunder any federal, state or
local taxes of any kind required by law to be withheld with respect to any such
payment.
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9. PROTECTION OF CONFIDENTIAL INFORMATION
The Executive agrees that he will keep all confidential and
proprietary information of the Company or relating to its business (including,
but not limited to, information regarding the Company's customers, pricing
policies, methods of operation, proprietary computer programs and trade secrets)
confidential, and that he will not (except with the Company's prior written
consent), while in the employ of the Company or thereafter, disclose any such
confidential information to any person, firm, corporation, association or other
entity, other than in furtherance of his duties hereunder, and then only to
those with a "need to know." The Executive shall not make use of any such
confidential information for his own purposes or for the benefit of any person,
firm, corporation, association or other entity (except the Company) under any
circumstances during or after the term of his employment. The foregoing shall
not apply to any information which is already in the public domain, or is
generally disclosed by the Company or is otherwise in the public domain at the
time of disclosure.
The Executive recognizes that because his work for the Company
will bring him into contact with confidential and proprietary information of the
Company, the restrictions of this Section 9 are required for the reasonable
protection of the Company and its investments and for the Company's reliance on
and confidence in the Executive.
10. COVENANT NOT TO COMPETE
The Executive hereby agrees that he will not, either during
the Employment Term or during the period of twenty-four (24) months from the
time the Executive's employment under this Agreement is terminated, as
contemplated in paragraphs 5(a), (b), (c) or (d) of this Agreement, engage in
any business activities on behalf of any enterprise which competes with the
Company in any business in which the Company is now engaged or any other
business in which the Company is actively engaged at the time of the
termination, provided that, if such termination occurs during the first 90 days
of the Executive's employment under this Agreement, the duration of this
Covenant Not to Compete shall be twelve (12) months from the time the
Executive's employment is terminated. The Executive will be deemed to be engaged
in such competitive business activities if he participates in such a business
enterprise as an employee, officer, director, consultant, agent, partner,
proprietor, or other participant; provided that the ownership of no more than 2
percent of the stock of a publicly traded corporation engaged in a competitive
business shall not be deemed to be engaging in competitive business activities.
The Executive agrees that he shall not, for a period of one
year from the time his employment under this Agreement ceases (for whatever
reason), or, if later, during any period in which he is receiving monthly
severance payments under Section 5 or Section 6 of this Agreement,
(i) solicit any employee or full-time consultant of the Company
for the purposes of hiring or retaining such employee or consultant, or
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(ii) contact any present or prospective client of the Company to
solicit such a person to enter into a management contract with any
organization other than the Company or a related entity.
For this purpose, the Executive shall be considered to be receiving monthly
severance payments under Section 5 of this Agreement during any period for which
he would be entitled to receive such severance payments.
11. INJUNCTIVE RELIEF
The Executive acknowledges and agrees that it would be
difficult to fully compensate the Company for damages resulting from the breach
or threatened breach of the covenants set forth in Sections 9 and 10 of this
Agreement and accordingly agrees that the Company shall be entitled to temporary
and injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions, to enforce such provisions in any action
or proceeding instituted in the United States District Court for the Western
District of Florida or in any court in the State of Florida having subject
matter jurisdiction. This provision with respect to injunctive relief shall not,
however, diminish the Company's right to claim and recover damages.
It is expressly understood and agreed that although the
parties consider the restrictions contained in this Agreement to be reasonable,
if a court determines that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction on the activities of
the Executive, no such provision of this Agreement shall be rendered void but
shall be deemed amended to apply as to such maximum time and territory and to
such extent as such court may judicially determine or indicate to be reasonable.
12. SEPARABILITY
If any provision of this Agreement shall be declared to be
invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
13. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit
of the heirs and representatives of the Executive and the assigns and successors
of the Company, but neither this Agreement nor any rights hereunder shall be
assignable or otherwise subject to hypothecation by the Executive.
14. ENTIRE AGREEMENT
This Agreement represents the entire agreement of the parties
and shall supersede any and all previous contracts, arrangements or
understandings between the
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Company and the Executive. The Agreement may be amended at any time only by
mutual written agreement of the parties hereto.
15. GOVERNING LAW
This Agreement shall be construed, interpreted, and governed
in accordance with the laws of the State of Florida, other than the conflict of
laws provisions of such laws.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed, and the Executive has hereunto set his hand, as of the day and
year first above written.
Attest: VISION TWENTY-ONE, INC.
/s/ XXXXXXXX X. XXXXXXXX
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Secretary Chief Executive Officer
Witness: EXECUTIVE:
/s/ XXXXXX X. XXXXXXX
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XXXXXX X. XXXXXXX
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