Exhibit 10.0
EMPLOYMENT CONTRACT FOR XXXX X. XXXXX
CONTRACT
THIS AGREEMENT, made and entered into the seventh day of September 1998,
by and between Xxxx X. Xxxxx, residing at 000 Xxxxxx Xx. #000, Xxx Xxxxx, XX
00000 (hereinafter called "Employee"), and Topform, Inc. a Delaware
corporation (hereinafter called "Employer").
WITNESSETH:
WHEREAS, Employer desires to employ Employee as President and Chief
Executive Officer, and
WHEREAS, Employee desires so to be employed.
NOW, THEREFORE, in consideration of the premises, of the mutual covenants
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the panics hereby agrees as
follows:
1. Employer hereby employs Employee and Employee agrees so to be employed
as President and Chief Executive Officer of Employer. The term of employment
shall be for an initial term of three years commencing as of the date hereof.
This Agreement and the employment provided for herein shall be extended from
year to year thereafter (the "renewal term"), except that either party may
terminate this Agreement effective as of the end of the term or of any
renewal term by giving the other written notice of its intention to do so not
later than one hundred eighty (180) days prior to the expiration of the term
hereof or of any renewal term.
2. (a) Employee hereby accepts such employment upon the terms and
conditions herein set forth. Employee's duties hereunder shall be to perform
as the President and Chief Executive Officer of the Employer in its business
subject to supervision by the Board of Directors of the Employer. Said duties
shall include all responsibilities generally recognized as being reasonable
for the general management of a company operating in the public trust,
including the hiring and firing of all personnel, creation and elimination of
positions, operating entities, etc.
(b) Employee agrees to devote his best efforts and his sufficient time
and attention to the performance of his duties hereunder. The principal place
of employment shall be in San Diego, California. Employee shall travel as
reasonable required in the performance of his duties hereunder.
3. (a) As compensation for the services to be rendered by Employee during
the term hereof and any renewal term, Employer shall pay to Employee and
Employee shall accept a salary of $108,000 per annum for the first year of
the term payable in accordance with Employer's payroll practices ("base
salary"). Base salary of Employee shall be the greater of 125% of the prior
years base salary or seventy-five percent (75%) of the prior years total
compensation, whichever is greater ("increased amount") after the expiration
of each year from the date hereof.
(b) Employee shall be entitled to such stock, stock option and cash
bonuses based upon the completion of various milestones and objectives as
determined by the Board of Directors from time to time, but no less than five
percent of the pretax profit per fiscal year.
(c) Employee shall be reimbursed for his reasonable expenses incurred in
the performance of his duties hereunder upon presentation of proper
documentation therefor.
4. (a) Employee shall be entitled to receive such other employee benefits
as Employer may now have or hereafter make generally available to its
employees from time to time.
(b) Employer shall furnish to Employee for use in the performance of his
services hereunder a full-size car as mutually agreed. Upon the expiration or
termination of this Agreement for any reason whatsoever Employee shall the
option of purchasing the car for the lower of its wholesale value as
determined by the NADA used car guide for the Central Region or return the
car to Employer.
(c) Employee shall be entitled to five weeks vacation during the first
year of the term increasing by one week per year to a maximum of ten weeks
per year. Employee has the right to accrue vacation for up to three years
after which he shall be entitled to receive compensation at his then current
rate in lieu of taking any or all of said vacation.
(d) Employee shall at no time be prohibited or discouraged from pursuing
any and all activities that Employee, in his sole discretion, deems to be
acceptable to him, including, but not limited to scuba diving, flying, sky
diving, etc.
(e) Employee shall comply with all of the terms and provisions of any
code of ethics at any time or from time to time instituted by Employer and
which is generally applicable to all other similarly situated employees of
Employer.
(f) Employee acknowledges that the Employer's consumer advertising and
marketing programs ("Programs") consisting of print, radio, TV and public
relations has been developed by Employer at its expense and is the basis for
its business and that any disclosure of such Programs will cause grievous
harm to Employer. Employee acknowledges that the Programs are unique and
unusual and constitutes the sole proprietary technology of Employer.
Therefore, Employee shall not, during the term of this Agreement or any time
thereafter, divulge, furnish or make accessible to anyone (other than in the
regular course of employer's business) any knowledge or information with
respect to the Programs and any financial information concerning the
business, methods of operation, finances and other aspects of the business of
Employer as now or hereafter conducted.
(g) Employee agrees that during the term of the employment, and for a
period of one (1) year thereafter, Employee will not, either through any
agent, firm or third party and whether as principal, agent or employee,
engage in any business of any nature which is competitive with the laser
vision correction business of the Employer at the time thereof.
(h) Employer shall be entitled to injunctive and/or other equitable
relief to prevent or remedy a breach of any of the provisions of this
Agreement and to secure their enforcement, in addition to any other remedies
or damages which may be available to Employer.
If to Employer:
Xxxx X. Xxxxx
000 Xxxxxx Xx. #000
Xxx Xxxxx, XX 00000
11. The failure of either party as any time to require performance by the
other party of any provision hereunder shall in no way affect the right of
that party thereafter to enforce the same, nor shall it affect the party's
right to enforce any of the other provisions in this Agreement; nor shall the
waiver by either party of the breach of any provision hereof be taken or held
to be a waiver of any subsequent breach of such provision or as a waiver of
the provision itself.
12. This Agreement constitutes the entire agreement between the parties. No
modification, variance or change in any of its terms or provisions shall be
valid unless in writing and signed by both parties. This Agreement shall be
governed and construed in accordance with the laws of the State of California.
13. The Employee is entitled to the following additional benefits:
(a) The Employee is entitled to fifteen paid days per year for
attendance or participation at lectures, colloquium conventions, courses and
continuing professional education.
(b) The Employee is entitled to ten days of paid sick leave in any
calendar year. The Employee will receive half pay for up to an additional
sixty days of sick leave in any calendar year, and unpaid leave if he is
unable to return to work after ninety days. If the Employee is not totally
and permanently disabled and does not return within one year of the end of a
sick leave period, the Employee will be deemed to have resigned his
employment. Total and permanent disability is defined as the inability of the
employee to carry out the normal duties of his position.
(c) If the Employee's physical condition makes full-time employment
impossible but part-time employment possible, the Employee and Employer will
negotiate an agreement providing for reduced duties and reduced compensation.
(d) The Employer's policy calls for no mandatory retirement age.
(e) The Employer agrees to pay death benefits to the surviving spouse
or estate of the Employee if the Employee's death occurs while this agreement
is in force in the amount of the aggregate of all compensation paid to
Employee during the past twelve months times five or five hundred thousand
dollars, whichever is greater.
6. Officer and Directors Insurance. The Employer agrees to maintain
Officers and Directors liability insurance covering the Employee in the
amount of at least $1,000,000 per occurrence and $5,000,000 overall per
policy year.
IN WITNESS WHEREOF,
duly executed and delivered as of the date set forth above.
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Xxxxx X. Xxxxxxx, Vice President
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Xxxx X. Xxxxx
