EXHIBIT 10.29
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement"), which is dated as of
September 4, 1998, is made by and between STAAR SURGICAL COMPANY, a Delaware
corporation, located at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, 00000 and
hereinafter referred to as "Company", and XXXXXX X. XXXXXXX, whose address is 00
Xxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx 00000, hereinafter referred to as "Employee",
based upon the following:
RECITALS
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WHEREAS, Company wishes to retain the services of Employee as its
Director of Clinical Affairs and to set forth in this Agreement the duties and
responsibilities Employee has agreed to undertake on behalf of Company; and
WHEREAS, Employee wishes to render services to Company as Director of
Clinical Affairs and to have set forth in this Agreement the duties and
responsibilities he has agreed to undertake on behalf of Company.
THEREFORE, in consideration of the foregoing and of the mutual
promises contained in this Agreement, Company and Employee (who are sometimes
individually referred to as a "party" and collectively referred to as the
"parties") agree as follows:
AGREEMENT
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1. SPECIFIED PERIOD.
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Company hereby employs Employee pursuant to the terms of this
Agreement and Employee hereby accepts employment with Company pursuant to the
terms of this Agreement for a period of five (5) years, beginning on September
4, 1998 and ending on September 3, 2003.
2. GENERAL DUTIES.
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Employee shall report to Company's Chief Executive Officer or his
designee. In his capacity as Director of Clinical Affairs, Employee shall do
and perform all services, acts, or things necessary or advisable to discharge
his duties under this Agreement, including, but not limited to, those duties and
responsibilities included in the Position Description attached hereto as Exhibit
"A". Employee shall perform such other duties as may, from time to time, be
prescribed by the Company through its Board of Directors (the "Board") or its
officers. Furthermore, Employee agrees to cooperate with and work to the best of
his ability with Company's management team, which includes the Board and the
officers and other employees, to continually improve Company's reputation in its
industry for quality products and performance.
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3. NONCOMPETITION, NONSOLICITATION AND NONINTERFERENCE
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AND PROPRIETARY PROPERTY AND CONFIDENTIAL
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INFORMATION PROVISIONS.
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(a) Noncompetition.
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(1) "Applicable Definitions" For purposes of this paragraph 3,
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the following capitalized terms shall have the definitions set forth below:
i. "Business Segments" - The term "Business Segments" is
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defined as each of Company's (or Company's affiliates') products or product
lines.
ii. "Competitive Business" - The term "Competitive
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Business" is defined as any business that is or may be competitive with or
similar to or adverse to any of Company's (or Company's affiliates') Business
Segments, whether such business is conducted by a proprietorship, partnership,
corporation or other entity or venture.
iii. "Territory" - The term "Territory" is defined as the
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geographic area (both within the United States and internationally) in which
each Business Segment is carried on including, by way of example and not
limitation, the entire geographic area in which Company conducts various phases
of such Business Segment, including purchasing, production, distribution,
promotional and marketing activities, sales, and location of plants and
warehouses.
(2) Covenant Not To Compete. Except as otherwise provided herein,
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Employee hereby covenants and agrees that during the term of this
Agreement, and for a period of one (1) year from the date this Agreement is
terminated or expires, Employee shall not, with respect to each Business
Segment and within the boundaries of the Territory applicable to such
Business Segment, without the prior written consent of Company (which
consent may be withheld in the sole and absolute discretion of Company),
directly or indirectly, either alone or in association or in connection
with or on behalf of any person, firm, partnership, corporation or other
entity or venture now existing or hereafter created: (i) be or become
interested or engaged in, directly or indirectly, with any Competitive
Business including, without limitation, being or becoming an organizer,
investor, lender, partner, joint venturer, stockholder, officer, director,
employee, manager, independent sales representative, associate, consultant,
agent, supplier, vendor, vendee, lessor, or lessee to any Competitive
Business, or (ii) in any manner associate with, or aid or abet or give
information or financial assistance to any Competitive Business, or (iii)
use or permit the use of Employee's name or any part thereof to be used or
employed in connection with any Competitive Business (collectively and
severally, the "Noncompetition Covenants"). Notwithstanding the foregoing,
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the provisions of this paragraph 3(a)2. shall not be deemed to prevent the
purchase or ownership by Employee as a passive investment of the
outstanding capital shares of any publicly held corporation, so long as any
other obligation or duty under the Noncompetition Covenants are not
breached.
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(3) Separate Covenants. The Noncompetition Covenants shall be
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construed to be divided into separate and distinct Noncompetition Covenants
with respect to (i) each Business Segment and (ii) each matter or type of
conduct described therein. Each of such divided Noncompetition Covenants
shall be separate and distinct from all such other Noncompetition Covenants
with respect to the same or any other Business Segment.
(4) Acknowledgements. Employee acknowledges that: (i) the covenants
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and the restrictions contained in the Noncompetition Covenants are
necessary, fundamental, and required for the protection of Company's
business; (ii) the Noncompetition Covenants relate to matters which are of
a special, unique and extraordinary value; and (iii) a breach of any of the
Noncompetition Covenants will result in irreparable harm and damages which
cannot be adequately compensated by a monetary award.
(5) Judicial Limitation. Notwithstanding the foregoing, if at any
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time a court of competent jurisdiction holds that any portion of any
Noncompetition Covenant is unenforceable by reason of its extending for too
great a period of time or over too great a geographical area or by reason
of its being too extensive in any other respect, such Noncompetition
Covenant shall be interpreted to extend only over the maximum period of
time, maximum geographical area, or maximum extent in all other respects,
as the case may be, as to which it may be enforceable, all as determined by
such court in such action.
(b) Nonsolicitation and Noninterference.
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(1) Covenants. Employee hereby covenants and agrees that during the
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term of this Agreement, and for a period of one (1) year from the date this
Agreement terminates or expires, Employee shall not, either for Employee's own
account or directly or indirectly in conjunction with or on behalf of any
person, partnership, corporation or other entity or venture:
i. Solicit or employ or attempt to solicit or employ any
person who is then or has, within twelve (12) months prior thereto, been an
officer, partner, manager, agent or employee of Company or any affiliate of
Company whether or not such a person would commit a breach of that person's
contract of employment with Company or any affiliate of Company, if any, by
reason of leaving the service of Company or any affiliate of Company (the
"Nonsolicitation Covenant"); or
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ii. On behalf of, directly or indirectly, any Competitive Business
(as such term is defined in paragraph 3(a)1.ii.), or for the purpose of or with
the reasonably foreseeable effect of harming the business of Company, solicit
the business of any person, firm or company which is then, or has been at any
time during the preceding twelve (12) months prior to such solicitation, a
customer, cli ent, contractor, supplier or vendor of Company or any affiliate
of Company (the "Noninterference Covenant)".
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(2) Acknowledgements. Each of the parties acknowledges that: (i) the
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covenants and the restrictions contained in the Nonsolicitation and
Noninterference Covenants are necessary, fundamental, and required for the
protection of the business of Company; (ii) such Covenants relate to
matters which are of a special, unique and extraordinary value; and (iii) a
breach of either of such Covenants will result in irreparable harm and
damages which cannot be adequately compensated by a monetary award.
(3) Judicial Limitation. Notwithstanding the foregoing, if at any
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time, despite the express agreement of Company and Employee, a court of
competent jurisdiction holds that any portion of any Nonsolicitation or
Noninterference Covenant is unenforceable by reason of its extending for
too great a period of time or by reason of its being too extensive in any
other respect, such Covenant shall be interpreted to extend only over the
maximum period of time or to the maximum extent in all other respects, as
the case may be, as to which it may be enforceable, all as determined by
such court in such action.
(c) Proprietary Property; Confidential Information.
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(1) "Applicable Definitions" For purposes of this paragraph 3(c),
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the following capitalized terms shall have the definitions set forth below:
i. "Confidential Information" - The term "Confidential
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Information" is collectively and severally defined as any information, matter or
thing of a secret, confidential or private nature, whether or not so labeled,
which is connected with Company's business or methods of operation or concerning
any of Company's suppliers, customers, licensors, licensees or others with whom
Company has a business relationship, and which has current or potential value to
Company or the unauthorized disclosure of which could be detrimental to Company.
Confidential Information shall be broadly defined and shall include, by way of
example and not limitation: (i) matters of a business nature available only to
management and owners of Company of which Employee may become aware (such as
information concerning customers, vendors and suppliers, including their names,
addresses, credit or financial status, buying or selling habits, practices,
requirements, and any arrangements or contracts that Company may have with such
parties, Company's marketing methods, plans and strategies, the costs of
materials, the prices Company obtains or has obtained or at which Company sells
or has sold its products or services, Company's manufacturing and sales costs,
the amount of compensation paid to employees of Company and other terms of their
employment, financial information such as financial statements, budgets and
projections, and the terms of any contracts or agreements Company has entered
into) and (ii) matters of a technical nature (such as product information, trade
secrets, know-how, formulae, innovations, inventions, devices, discoveries,
techniques, formats, processes, methods, specifications, designs, patterns,
schematics, data, compilation of information, test results, and research and
development projects). For purposes of the foregoing, the term "trade secrets"
shall mean the broadest and most inclusive interpretation of trade secrets as
defined by Section 3426.1(d) of the California Civil Code (the Uniform Trade
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Secrets Act) and cases interpreting the scope of said Section.
ii. "Proprietary Property" - The term "Proprietary
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Property" is
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collectively and severally defined as any written or tangible property owned or
used by Company in connection with Company's business, whether or not such
property also qualifies as Confidential Information. Proprietary Property shall
be broadly defined and shall include, by way of example and not limitation,
products, samples, equipment, files, lists, books, notebooks, records,
documents, memoranda, reports, patterns, schematics, compilations, designs,
drawings, data, test results, contracts, agreements, literature, correspondence,
spread sheets, computer programs and software, computer print outs, other
written and graphic records, and the like, whether originals, copies, duplicates
or summaries thereof, affecting or relating to the business of Company,
financial statements, budgets, projections, invoices.
(2) Ownership of Proprietary Property. Employee acknowledges that all
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Proprietary Property which Employee may prepare, use, observe, come into
possession of and/or control shall, at all times, remain the sole and
exclusive property of Company. Employee shall, upon demand by Company at
any time, or upon the cessation of Employee's employment, irrespective of
the time, manner, cause or lack of cause of such cessation, immediately
deliver to Company or its designated agent, in good condition, ordinary
wear and tear and damage by any cause beyond the reasonable control of
Employee excepted, all items of the Proprietary Property which are or have
been in Employee's possession or under his control, as well as a statement
describing the disposition of all items of the Proprietary Property beyond
Employee's possession or control in the event Employee has not previously
returned such items of the Proprietary Property to Company.
(3) Agreement Not to Use or Divulge Confidential Information. Employee
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agrees that he will not, in any fashion, form or manner, unless
specifically consented to in writing by Company, either directly or
indirectly use, divulge, transmit or otherwise disclose or cause to be
used, divulged, transmitted or otherwise disclosed to any person, firm or
corporation, in any manner whatsoever (other than in Employee's performance
of duties for Company or except as required by law) any Confidential
Information of any kind, nature or description. The foregoing provisions
shall not be construed to prevent Employee from making use of or disclosing
information which is in the public domain through no fault of Employee,
provided, however, specific information shall not be deemed to be in the
public domain merely because it is encompassed by some general information
that is published or in the public domain or in Employee's possession prior
to Employee's employment with Company.
(4) Acknowledgement of Secrecy. Employee acknowledges that the
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Confidential Information is not generally known to the public or to other
persons who can obtain economic value from its disclosure or use and that
the Confidential Information derives independent economic value thereby,
and Employee agrees that he shall take all efforts reasonably necessary to
maintain the secrecy and confidentiality of the Confidential Information
and to otherwise comply with the terms of this Agreement.
(5) Inventions, Discoveries. Employee acknowledges that any
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inventions, discoveries or trade secrets, whether patentable or not, made
or found by Employee in
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the scope of his employment with Company constitute property of Company and that
any rights therein now held or hereafter acquired by Employee individually or in
any capacity are hereby transferred and assigned to Company, and agrees to
execute and deliver any confirmatory assignments, documents or instruments of
any nature necessary to carry out the intent of this paragraph when requested by
Company without further compensation therefor, whether or not Employee is at the
time employed by Company.
4. COMPLIANCE WITH SECURITIES LAWS. Employee acknowledges that Company
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and Employee will be subject to the provisions of Sections 10(b), 16(a) and
16(b) of the Securities Exchange Act of 1934. Employee acknowledges that
Section 16(a) of the Securities Exchange Act may require Employee to report the
ownership or transfer of his stock or other securities in Company to the
Securities and Exchange Commission and that Sections 10(b) and 16(b) can
prohibit Employee from selling or transferring his stock or securities in
Company. Employee agrees that he will comply with Company's policies, as stated
from time to time, relating to selling or transferring his stock or securities
in Company.
5. COMPENSATION.
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(a) Salary. During the term of this Agreement, Company shall pay to
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Employee a base salary of Thousand Dollars ($ ) per
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year.
(b) Additional Compensation. As additional compensation, Employee
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shall receive options to purchase one hundred thousand (100,000) shares of
Company's common stock pursuant to the terms of the 0000 XXXXX Surgical Company
Stock Plan (the "Plan"), which options shall vest over a period of three (3)
years, thirty three thousand three hundred thirty-three (33,333) shares each on
September 4, 1999, and September 4, 2000 and thirty three thousand three hundred
thirty-four (33,334) shares on September 4, 2001. The purchase price shall be
six dollars and twenty-five cents ($6.25) per share. Stock issued pursuant to
the Plan shall be restricted stock, although Company shall reserve the right to
issue registered shares if it so decides. Employee agrees to be bound by the
terms of the Plan as adopted.
(c) Severance Pay Upon Change of Control. Upon the sale or
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disposition by Company of substantially all of its business or assets or the
sale of the capital stock of Company in connection with the sale or transfer of
a controlling interest in Company to a third party or the merger or
consolidation of Company with another corporation as part of a sale or transfer
of a controlling interest in Company to a third party, Employee shall receive,
as additional compensation and not in lieu of his rights under this Agreement,
two (2) years' salary. "A controlling interest" shall be defined as 50% or more
of the common stock of the Company. "Two (2) years' salary" shall be defined as
only the cash compensation paid to Employee pursuant to subparagraph (a) above,
as it may be modified from time to time, and shall not include employee
benefits, incentive stock options, automobile allowance or debt forgiveness, if
any. Employee shall be entitled to receive this additional compensation if
Employee's employment is terminated as a
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result of the change of control described herein or, if Employee, at Employee's
election, terminates his employment as a result of such change of control.
6. REIMBURSEMENT OF BUSINESS EXPENSES.
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(a) Reimbursement for Ordinary Expenses. Company shall promptly
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reimburse Employee for all reasonable business expenses incurred by Employee in
connection with the business of Company. However, each such expenditure shall
be reimbursable only if Employee furnishes to Company adequate records and other
documentary evidence required by federal and state statutes and regulations
issued by the appropriate taxing authorities for the substantiation of each such
expenditure as an income tax deduction.
(b) Reimbursement for Extraordinary Expenses. Any single business
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expense with a cost in excess of One Thousand Dollars ($1,000) shall be deemed
to be an extraordinary business expense. Employee shall not incur any
extraordinary business expense unless the expense has been approved by the Chief
Executive Officer. If Employee fails to obtain the approval of the Chief
Executive Officer, Company may refuse to reimburse Employee for that expense.
7. INDEMNIFICATION OF LOSSES.
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So long as Employee's actions were taken in good faith and in
furtherance of Company's business and within the scope of Employee's duties and
authority, Company shall indemnify and hold Employee harmless to the full extent
of the law from any and all claims, losses and expenses sustained by Employee as
a result of any action taken by him to discharge his duties under this
Agreement, and Company shall defend Employee, at Company's expense, in
connection with any and all claims by stockholders or third parties which are
based upon actions taken by Employee to discharge his duties under this
Agreement.
8. PERSONAL CONDUCT.
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Employee agrees promptly and faithfully to comply with all present and
future policies, requirements, directions, requests and rules and regulations of
Company in connection with Company's business. Employee further agrees to
conform to all laws and regulations and not at any time to commit any act or
become involved in any situation or occurrence tending to bring Company into
public scandal, ridicule or which will reflect unfavorably on the reputation of
Company.
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9. TERMINATION FOR CAUSE.
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Company reserves the right to declare Employee in default of this
Agreement if Employee willfully breaches or habitually neglects the duties which
he is required to perform under the terms of this Agreement, or if Employee
commits such acts of dishonesty, fraud, misrepresentation, gross negligence or
willful misconduct as would prevent the effective performance of his duties or
which results in material harm to Company or its business. Company may
terminate this Agreement for cause by giving written notice of termination to
Employee. With the exception of the covenants included in paragraph 3 above,
upon such termination the obligations of Employee and Company under this
Agreement shall immediately cease. Such termination shall be without prejudice
to any other remedy to which Company may be entitled either at law, in equity,
or under this Agreement. If Employee's employment is terminated pursuant to
this paragraph, Company shall pay to Employee, immediately upon such
termination, any deferred or unpaid compensation to which Employee is entitled
on the date of such termination.
10. TERMINATION WITHOUT CAUSE.
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(a) Death. Employee's employment shall terminate upon the death of
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Employee. Upon such termination, the obligations of Employee and Company under
this Agreement shall immediately cease.
(b) Disability. Company reserves the right to terminate Employee's
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employment upon ten (10) days written notice if, for a period of sixty (60)
days, Employee is prevented from discharging his duties under this Agreement due
to any physical or mental disability. With the exception of the covenants
included in paragraph 3 above, upon such termination the obligations of Employee
and Company under this Agreement shall immediately cease.
(c) Election. Employee's employment may be terminated at any time by
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Employee upon not less than one hundred eighty (180) days written notice by
Employee to the Company's Chief Executive Officer. With the exception of the
covenants included in paragraph 3 above, upon such termination the obligations
of Employee and Company under this Agreement shall immediately cease.
11. MISCELLANEOUS.
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(a) Preparation of Agreement. It is acknowledged by each party that
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such party either had separate and independent advice of counsel or the
opportunity to avail itself or himself of same. In light of these facts it is
acknowledged that no party shall be construed to be solely responsible for the
drafting hereof, and therefore any ambiguity shall not be construed against any
party as the alleged draftsman of this Agreement.
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(b) Cooperation. Each party agrees, without further consideration, to
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cooperate and diligently perform any further acts, deeds and things and to
execute and deliver any documents that may from time to time be reasonably
necessary or otherwise reasonably required to consummate, evidence, confirm
and/or carry out the intent and provisions of this Agreement, all without undue
delay or expense.
(c) Interpretation.
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(i) Entire Agreement/No Collateral Representations. Each party
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expressly acknowledges and agrees that this Agreement, including all exhibits
attached hereto: (1) is the final, complete and exclusive statement of the
agreement of the parties with respect to the subject matter hereof; (2)
supersedes any prior or contemporaneous agreements, promises, assurances,
guarantees, representations, understandings, conduct, proposals, conditions,
commitments, acts, course of dealing, warranties, interpretations or terms of
any kind, oral or written (collectively and severally, the "Prior Agreements"),
and that any such prior agreements are of no force or effect except as expressly
set forth herein; and (3) may not be varied, supplemented or contradicted by
evidence of Prior Agreements, or by evidence of subsequent oral agreements. Any
agreement hereafter made shall be ineffective to modify, supplement or discharge
the terms of this Agreement, in whole or in part, unless such agreement is in
writing and signed by the party against whom enforcement of the modification or
supplement is sought.
(ii) Waiver. No breach of any agreement or provision herein
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contained, or of any obligation under this Agreement, may be waived, nor shall
any extension of time for performance of any obligations or acts be deemed an
extension of time for performance of any other obligations or acts contained
herein, except by written instrument signed by the party to be charged or as
otherwise expressly authorized herein. No waiver of any breach of any agreement
or provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof, or a waiver or relinquishment of any other agreement
or provision or right or power herein contained.
(iii) Remedies Cumulative. The remedies of each party under
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this Agreement are cumulative and shall not exclude any other remedies to which
such party may be lawfully entitled.
(iv) Severability. If any term or provision of this Agreement or
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the application thereof to any person or circumstance shall, to any extent, be
determined to be invalid, illegal or unenforceable under present or future laws
effective during the term of this Agreement, then and, in that event: (A) the
performance of the offending term or provision (but only to the extent its
application is invalid, illegal or unenforceable) shall be excused as if it had
never been incorporated into this Agreement, and, in lieu of such excused
provision, there shall be added a provision as similar in terms and amount to
such excused provision as may be possible and be legal, valid and enforceable,
and (B) the remaining part of this Agreement (including the
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application of the offending term or provision to persons or circumstances other
than those as to which it is held invalid, illegal or unenforceable) shall not
be affected thereby and shall continue in full force and effect to the fullest
extent provided by law.
(v) Time is of the Essence. It is expressly understood and agreed
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that time of performance is strictly of the essence with respect to each and
every term, condition, obligation and provision hereof and that the failure to
timely perform any of the terms, conditions, obligations or provisions hereof by
any party shall constitute a material breach and a noncurable (but waiveable)
default under this Agreement by the party so failing to perform.
(vi) No Third Party Beneficiary. Notwithstanding anything else
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herein to the contrary, the parties specifically disavow any desire or intention
to create any third party beneficiary obligations, and specifically declare that
no person or entity, other than as set forth in this Agreement, shall have any
rights hereunder or any right of enforcement hereof.
(vii) No Reliance Upon Prior Representation. The parties
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acknowledge that no other party has made any oral representation or promise
which would induce them prior to executing this Agreement to change their
position to their detriment, partially perform, or part with value in reliance
upon such representation or promise; the parties acknowledge that they have
taken such action at their own risk; and the parties represent that they have
not so changed their position, performed or parted with value prior to the time
of their execution of this Agreement.
(viii) Headings; References; Incorporation; Gender. The
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headings used in this Agreement are for convenience and reference purposes only,
and shall not be used in construing or interpreting the scope or intent of this
Agreement or any provision hereof. References to this Agreement shall include
all amendments or renewals thereof. Any exhibit referenced in this Agreement
shall be construed to be incorporated in this Agreement. As used in this
Agreement, each gender shall be deemed to include the other gender, including
neutral genders or genders appropriate for entities, if applicable, and the
singular shall be deemed to include the plural, and vice versa, as the context
requires.
(d) Enforcement.
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(i) Applicable Law. This Agreement and the rights and remedies of
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each party arising out of or relating to this Agreement (including, without
limitation, equitable remedies) shall be solely governed by, interpreted under,
and construed and enforced in accordance with the laws (without regard to the
conflicts of law principles thereof) of the State of California, as if this
agreement were made, and as if its obligations are to be performed, wholly
within the State of California.
(ii) Consent to Jurisdiction; Service of Process. Any action or
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proceeding arising out of or relating to this Agreement shall be filed in and
heard and litigated
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solely before the state courts of California located within the County of Los
Angeles. Each party generally and unconditionally accepts the exclusive
jurisdiction of such courts and to venue therein, consents to the service of
process in any such action or proceeding by certified or registered mailing of
the summons and complaint in accordance with the notice provisions of this
Agreement, and waives any defense or right to object to venue in said courts
based upon the doctrine of "Forum Non Conveniens". Each party irrevocably agrees
to be bound by any judgement rendered thereby in connection with this Agreement.
(iii) Waiver of Right to Jury Trial. Each party hereby
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waives such party's respective right to a jury trial of any claim or cause of
action based upon or arising out of this Agreement. Each party acknowledges
that this waiver is a material inducement to each other party hereto to enter
into the transaction contemplated hereby, that each other party has already
relied upon this waiver in entering into this Agreement, and that each other
party will continue to rely on this waiver in their future dealings. Each party
warrants and represents that such party has reviewed this waiver with such
party's legal counsel, and that such party has knowingly and voluntarily waived
its jury trial rights following consultation with legal counsel.
(vi) Consent to Specific Performance and Injunctive Relief and
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Waiver of Bond or Security. Each party acknowledges that Company may, as a
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result of Employee's breach of the covenants and obligations included in
paragraph 3 of this Agreement, sustain immediate and long-term substantial and
irreparable injury and damage which cannot be reasonably or adequately
compensated by damages at law. Each party agrees that in the event of Employee's
breach or threatened breach of the covenants and obligations included in
paragraph 3, Company shall be entitled to obtain from a court of competent
jurisdiction or arbitration, as the case may be under this Agreement, equitable
relief, including, without limitation, enforcement of all of the provisions of
this Agreement by specific performance and/or temporary, preliminary and/or
permanent injunctions enforcing any of Company's rights, requiring performance
by Employee, or enjoining any breach by Employee, all without proof of any
actual damages that have been or may be caused to Company by such breach or
threatened breach and without the posting of bond or other security in
connection therewith. Employee waives the claim or defense that Company has an
adequate remedy at law and Employee shall not allege or otherwise assert the
legal position that any such remedy at law exists. Each party agrees and
acknowledges: (1) that the terms of this paragraph are fair, reasonable and
necessary to protect the legitimate interests of the other party; (2) that this
waiver is a material inducement to the other party to enter into the transaction
contemplated hereby; (3) that the other party has already relied upon this
waiver in entering into this Agreement; and (4) that each party will continue to
rely on this waiver in their future dealings. Each party warrants and represents
that such party has reviewed this provision with such party's legal counsel, and
that such party has knowingly and voluntarily waived its rights following
consultation with legal counsel.
(v) Attorneys' Fees and Costs. If any party institutes or should
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the parties otherwise become a party to any Action Or Proceeding (as defined
below) based upon or
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arising out of this Agreement including, without limitation, to enforce or
interpret this Agreement or any provision hereof, or for damages by reason of
any alleged breach of this Agreement or any provision hereof, or for a
declaration of rights in connection herewith, or for any other relief, including
equitable relief, in connection herewith, the Prevailing Party in any such
Action Or Proceeding, whether or not such Action Or Proceeding proceeds to final
judgement or determination, shall be entitled to receive from the non-Prevailing
Party as a cost of suit, and not as damages, all Costs And Expenses (as defined
below) of prosecuting or defending the Action Or Proceeding, as the case may be,
including, without limitation, reasonable Attorneys' And Other Fees.
(vi) Definitions. The term "Action Or Proceeding" is defined as
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any and all claims, suits, actions, notices, inquiries, proceedings, hearings,
arbitrations or other similar proceedings, including appeals and petitions
therefrom, whether formal or informal, governmental or non-governmental, or
civil or criminal. The term "Prevailing Party" is defined as the party who is
determined to prevail by the Court after its consideration of all damages and
equities in the Action Or Proceeding, whether or not the Action Or Proceeding
proceeds to final judgment. The Court shall retain the discretion to determine
that no party is the Prevailing Party in which case no party shall be entitled
to recover its Costs And Expenses under this subparagraph 11(d). The term
"Attorneys' And Other Fees" is defined as attorneys' fees, accountants' fees,
fees of other professionals, witness fees (including experts engaged by the
parties, but excluding shareholders, officers, employees or partners of the
parties), and any and all other similar fees incurred in the prosecution or
defense of the Action Or Proceeding. The term "Costs And Expenses" is defined as
the cost to take depositions, the cost to arbitrate this dispute, if applicable,
and the costs and expenses of travel and lodging incurred with respect to the
Action Or Proceeding, provided, however, the party incurring said travel and
lodging expense must ordinarily travel over one hundred (100) miles, one way,
from his or her residence in incurring such expense.
(e) No Assignment of Rights or Delegation of Duties by Employee.
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Employee's rights and benefits under this Agreement are personal to him and
therefore (i) no such right or benefit shall be subject to voluntary or
involuntary alienation, assignment or transfer; and (ii) Employee may not
delegate his duties or obligations hereunder.
(f) Notices. Unless otherwise specifically provided in this
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Agreement, all notices, demands, requests, consents, approvals or other
communications (collectively and severally called "Notices") required or
permitted to be given hereunder, or which are given with respect to this
Agreement, shall be in writing, and shall be given by: (A) personal delivery
(which form of Notice shall be deemed to have been given upon delivery), (B) by
telegraph or by private airborne/overnight delivery service (which forms of
Notice shall be deemed to have been given upon confirmed delivery by the
delivery agency), (C) by electronic or facsimile or telephonic transmission,
provided the receiving party has a compatible device or confirms receipt thereof
(which forms of Notice shall be deemed delivered upon confirmed transmission or
confirmation of receipt), or (D) by mailing in the United States mail by
registered or certified mail, return receipt
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requested, postage prepaid (which forms of Notice shall be deemed to have been
given upon the fifth {5th} business day following the date mailed). Each party,
and their respective counsel, hereby agree that if Notice is to be given
hereunder by such party's counsel, such counsel may communicate directly with
all principals, as required to comply with the foregoing notice provisions.
Notices shall be addressed to the address hereinabove set forth in the
introductory paragraph of this Agreement, or to such other address as the
receiving party shall have specified most recently by like Notice, with a copy
to the other parties hereto. Any Notice given to the estate of a party shall be
sufficient if addressed to the party as provided in this subparagraph.
(g) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument, binding on all parties hereto. Any
signature page of this Agreement may be detached from any counterpart of this
Agreement and reattached to any other counterpart of this Agreement identical in
form hereto by having attached to it one or more additional signature pages.
(h) Execution by All Parties Required to be Binding; Electronically
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Transmitted Documents. This Agreement shall not be construed to be an offer and
---------------------
shall have no force and effect until this Agreement is fully executed by all
parties hereto. If a copy or counterpart of this Agreement is originally
executed and such copy or counterpart is thereafter transmitted electronically
by facsimile or similar device, such facsimile document shall for all purposes
be treated as if manually signed by the party whose facsimile signature appears.
IN WITNESS WHEREOF, the parties have executed this Agreement.
Company:
STAAR SURGICAL COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxx
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Employee:
/s/ Xxxxxx X. Xxxxxxx
_______________________________________
Xxxxxx X. Xxxxxxx
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EXHIBIT "A"
POSITION DESCRIPTION
DIRECTOR OF CLINICAL AFFAIRS
The Director of Clinical Affairs reports to the Chief Executive Officer.
Generally, the Director of Clinical Affairs directs
The duties and responsibilities of the position include, but are not
limited to:
(1)
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