EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
effective as of February 23, 2000 (the "Effective Date"), by and between
LASERSIGHT TECHNOLOGIES, INC. a Delaware corporation (the "Company"), and D.
XXXXXXX XXXXXXXX (the "Employee").
RECITALS
A. Employee desires to be employed as the Company's Vice
President of Operations.
B. The Company desires to employ the Employee upon the terms
and conditions herein set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment of the Employee. Subject to the terms and conditions of
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this Agreement, the Company hereby employs the Employee, and the Employee hereby
accepts such employment and agrees to perform the services specified herein.
2. Duties. The Employee shall hold the title of and serve as Vice
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President of Operations of the Company and have authority and responsibility in
accordance with policies and practices of the Company. The Employee shall report
to and be subject to the direction of the Company's Chief Executive Officer or
such person's designee. During the term of employment hereunder, the Employee
shall:
(a) Perform, to the best of the Employee's ability, those duties
reasonably assigned to Employee from time to time;
(b) Devote the Employee's full time and first priority
business efforts to the Company's business, provided that
nothing herein shall prohibit the Employee from spending reasonable
amounts of time for personal affairs, including, without limitation,
managing his personal investments; and
(c) Carry out Company policies and directives in a manner that
will promote and develop the Company's best interests.
3. Base Salary. In consideration of the Employee satisfying the
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Employee's obligation under this Agreement Employee will receive a base salary
(the "Base Salary") which will be calculated at an annual rate of $140,000. The
Base Salary shall be payable in equal installments in accordance with the
Company's customary mode of salary payments for employees of the Company and
shall be subject to the Company's standard withholdings for applicable taxes and
benefit contributions.
4. Additional Compensation. On an annual basis the Employee will be
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eligible to receive a cash bonus (the "Performance Bonus") in an aggregate
amount of up to 20% of Base Salary if the Employee or the Company, as
appropriate meets all or a portion of the specific objectives (the "Performance
Objectives") which are established by the Company after consultation with the
Employee. The Performance Objectives for the initial year of this Agreement will
be established within 60 days after the Effective Date. The Company may award
all or the relevant portion of the Performance Bonus on an annual basis within
60 days after the end of the relevant year. The payment of the Performance Bonus
shall be subject to the Company's standard withholdings for applicable taxes and
benefit contributions, as applicable.
5. Stock Options.
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(a) Employee will be granted options (the "Stock Options") to
purchase 100,000 shares of the common stock of LaserSight Incorporated
("LaserSight") on the last to occur of the following dates (such date
to be referred to as the "Approval Date"): (i) the date on which
LaserSight's Executive Compensation and Stock Option Committee (the
"Committee") approves the grant of the Stock Options, or (ii) the date
on which your employment with the Company commences. The Stock Options
shall be granted pursuant to and shall be governed by the terms of
LaserSight's 1996 Equity Incentive Plan, as amended and restated (the
"Equity Incentive Plan") and the award agreement to be delivered to the
Employee pursuant to the Equity Incentive Plan. The Stock Options shall
be granted at an option price per share equal to the Fair Market Value
per share (as defined in the Equity Incentive Plan) on the Approval
Date and will vest 33?% on the first anniversary of the Effective Date
and 33?% on each of the second and third anniversaries of the Effective
Date.
(b) In addition, the Company agrees that if from time to time
the Company recommends that the Committee approve option grants to
members of the Company's senior management team then the Employee shall
be included in such recommendation. Such option grants would be subject
to the approval of the Committee, the terms of the Equity Incentive
Plan and the terms of the award agreement delivered to the Employee
pursuant to the Equity Incentive Plan.
6. Fringe Benefits. During the term of employment hereunder, the
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Employee shall be entitled to those fringe benefits and perquisites set
forth on Exhibit A hereto.
7. Expenses. The Company shall reimburse the Employee for reasonable
costs and expenses, including, but not limited to, expenses for travel, lodging
and meals, incurred in connection with the performance of the Employee's duties
hereunder. In order for the Employee to be eligible for reimbursement Employee
shall comply with the Company's relevant policies, procedures and guidelines
established and implemented from time to time by the Company.
8. Terms of Employment; Severance.
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(a) The term of this Agreement shall begin on the date hereof
and shall continue for the three (3) year period immediately
thereafter, unless sooner terminated as provided in this Section 8 (the
"Initial Term"). Unless either party shall give notice of intent not to
renew this Agreement to the other party at least 60 days prior to the
end of the Initial Term or any Renewal Term (as defined herein), the
term of this Agreement shall, on each such anniversary date, be
automatically extended for successive terms of one year (each a
"Renewal Term").
(b) Notwithstanding the foregoing, the Employee's employment
hereunder may be terminated by the Company at any time for Cause. Such
termination shall be effective upon the Company providing written
notice to the Employee as to the effective date of termination.
(c) Notwithstanding the foregoing, the Employee's employment
hereunder shall terminate in the event of Employee's death or
Disability (as defined in Section 11).
(d) Notwithstanding the foregoing, the Employee's employment
hereunder may be terminated by the Company at any time without Cause.
Such termination shall be effective upon the Company providing written
notice to the Employee as to the effective date of termination.
(e) Notwithstanding the foregoing, the Employee's employment
hereunder may be terminated by the Employee at any time for Good Reason
(as defined in Section 11) upon prior written notice to the Company
specifying therein the grounds for termination and the effective date
of termination.
(f) In addition to all other rights of Employee and
obligations of the Company described herein which arise or continue
upon termination of Employee's employment, the following shall apply:
(i) Upon termination of the Employee's employment
hereunder for any reason whatsoever, the Company shall pay to
the Employee all salary and benefits earned through the
effective date of termination.
(ii) If the Employee's employment hereunder is
terminated by the Company without Cause or by the Employee for
Good Reason, the Employee shall be entitled to receive, as
Employee's sole remedy for such termination, the Base Salary
through the end of the 12 month period immediately following
the effective date of such termination of Employee. If the
Employee's employment is terminated by the Company without
Cause, then all salary owed to the Employee shall be paid over
the relevant period of time in accordance with the Company's
normal payroll practices. Notwithstanding the foregoing, in
order to be eligible for the payments contemplated by this
Section 8(f)(ii), the Employee must not be in default of the
terms of Sections 9 and 10 and the Employee must deliver a
complete release of all claims in favor of the Company and in
a form satisfactory to the Company.
9. Restriction Against Competition.
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(a) In consideration of the Compensation to be received
hereunder, the Employee agrees that while he is employed by the Company pursuant
to this Agreement, and during the two year period following the effective date
of termination of this Agreement, for any reason, the Employee shall not,
directly or indirectly, as a stockholder, partner, officer, director, agent,
consultant, employee, or otherwise:
(i) engage in any business that competes with the
business of the Company ("Company" defined in Sections 9, 10
and 11(b) herein to mean all Subsidiaries, Affiliates,
divisions, successors, and assigns of the Company and any of
their Subsidiaries or Affiliates) anywhere within the United
States and such other countries that the Company is then
conducting its business; provided, however, that the foregoing
shall not prohibit the Employee's ownership of up to 1% of the
outstanding shares of capital stock of any corporation whose
securities are publicly traded on a national or regional stock
exchange;
(ii) purposefully interfere or attempt to interfere
with any of the Company's contracts (regardless of whether
these contracts are in writing or verbal) 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 who are or were employed by the Company
during the two-year period following the termination of this
Agreement; and
(iv) purposefully interfere with the business
relationship of or solicit the business or orders of Persons
(a) who are Company customers on the effective date of
termination of this Agreement, or one year 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 (1) to whom the Company has submitted a formal
quotation within the one year prior to the effective date of
termination of this Agreement, or (2) that have been
previously listed or identified by the Company as a business
prospect at any time during the six months preceding the
effective date of termination.
(b) The parties agree that if the Employee commits or
threatens to commit a breach of the covenants of this Section 9, 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 any such breach would cause irreparable
injury to the parties and that money damages may not provide an
adequate remedy therefor.
10. Protection of Confidential Information and Trade Secrets of the
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Company.
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(a) Confidentiality. During the term of this Agreement and for
a period of five years after any termination or expiration thereof, the
Employee agrees that the Employee will not use for the Employee or
others or divulge or convey to others any secret or confidential
information, knowledge or data of the Company obtained by the Employee
during his employment with the Company. Such information, knowledge or
data includes but is not limited to secret or confidential matters: (i)
of a technical nature such as, but not limited to, methods, know-how,
formulae, compositions, processes, discoveries, machines, inventions,
intellectual property, computer programs and similar items or research
projects; (ii) of a business nature such as, but not limited to,
information about the cost, purchasing, profits, markets, sales or
customers; and (iii) pertaining to future developments such as, but not
limited to, research and development, future marketing or merchandising
plans and future expansion plans. 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 Employee.
(b) Injunctive Relief. The Employee 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 10 will be inadequate, and
that the Company shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of paragraph (a) of this Section 10
and to enforce specifically the terms and provisions thereof, in
addition to any other remedy to which the Company may be entitled at
law or equity.
(c) Return of Documents and Other Property. Upon the
termination of the Employee's employment with the Company, or at any
time upon the request of the Company, the Employee 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 Employee.
(d) Intellectual Property Rights. Employee acknowledges and
agrees that in consideration for his employment with Company and in
exchange for the consideration to be paid to Employee in connection
with such employment, all creative works Employee produces in
connection with his employment by Company which relate to Company's
actual or demonstrably anticipated research or development, including,
without limitation, any invention, formula, pattern, compilation,
computer program (and related documentation and source code), device,
method, technique, drawing, process or other intellectual property or
property right (collectively, "Intellectual Property"), shall be
considered to have been prepared for Company as a part of and pursuant
to Employee's employment with Company. Employee shall disclose to
Company the existence of such Intellectual Property when he becomes
aware of its existence, and Employee agrees that any such Intellectual
Property shall be owned by Company regardless of whether it would
otherwise be considered a work made for hire. Employee agrees to
execute any documents which Company deems necessary to protect
Company's interest, including assignments, and further agrees to give
evidence and testimony and take any other reasonable actions as may be
necessary, to secure and enforce Company's rights.
Notwithstanding anything set forth in this Section 10(d)
to the contrary, the parties acknowledge and agree that any
Intellectual Property that Employee (i) has developed or was in the
process of developing prior to the Effective Date or which he develops
during the Term, and (ii) has not used any of Company's resources
(whether materials, equipment, supplies, or other employees,
contractors or consultants of Company) in connection with such
development, shall be owned by Employee (the "Employee Intellectual
Property"); provided, however, Employee shall promptly notify (the
"Development Notice")Company of the existence of such Employee
Intellectual Property. The Development Notice shall completely describe
the Employee Intellectual Property and the applications for such
Employee Intellectual Property. If within 30 days after Company's
receipt of the Development Notice Company notifies Employee that
Company would like to purchase or license the item of Employee
Intellectual Property which is the subject of the Development Notice,
then Company and Employee shall negotiate in good faith for the
purchase or license of such item of Employee Intellectual Property.
Employee agrees that he will not directly or indirectly disclose the
existence of the Employee Intellectual Property to any third party
unless Company either notifies Employee in writing that Company does
not elect to purchase or license the Employee Intellectual Property or
Company fails to notify Employee of its intent with regard to the
purchase or license of the Employee Intellectual Property within 30
days after the date of Company's receipt of the Development Notice.
11. Certain Defined Terms. For purposes of this Agreement, the
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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
Employee officer (A) of such Person, (B) of any 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, (i) to vote or direct the voting of more
than 20% of the outstanding voting securities of such Person, or (ii)
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:
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(i) The Employee's conviction of or plea of no
contest to any crime involving moral turpitude, the theft or
willful destruction of money or other property of the Company
or his conviction of or plea of no contest to any felony
crime;
(ii) The Employee's inability to perform his
responsibilities due to his abuse or misuse of alcohol or
prescribed drugs or any use of illegal drugs;
(iii) The Employee's commission of theft, embezzlement or
fraud against the Company;
(iv) The Employee has willfully damaged the Company's
property, business reputation, or good will;
(v) Unsatisfactory performance by Employee of his job or
duties hereunder that is not cured within 10 days after Employee is
notified of such unsatisfactory performance; or
(vi) Employee's insubordination or other misconduct as
determined by the Company in its sole and absolute discretion.
(c) "Change in Control" shall mean any one or more of the
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following:
(i) the acquisition or holding by any person, entity
or "group" (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934) (the "1934 Act"), other
than by LaserSight or any employee benefit plan of LaserSight,
or beneficial ownership (within the meaning of Securities and
Exchange Commission ("SEC") Rule 13d-3 under the 0000 Xxx) of 25%
or more of LaserSight's then outstanding common stock; provided,
however, that no Change of Control shall occur solely by reason of
any such acquisition by a corporation with respect to which, after
such acquisition more than 60% of the then-outstanding common
shares of such corporation are then beneficially owned, directly or
indirectly, by the persons who were the beneficial owners of
LaserSight's common stock immediately before such acquisition
in substantially the same proportions as their respective
ownership, immediately before such acquisition, of LaserSight's
then-outstanding common stock; or
(ii) individuals who, as of the date of this
Agreement constitute LaserSight's Board of Directors (the
"Incumbent Board") cease for any reason to constitute at least
a majority of LaserSight's Board of Directors; provided that
any individual who becomes a director after the date of this
Agreement whose election or nomination for election by the
stockholders of LaserSight was approved by at least a majority
of the Incumbent Board (other than an election or nomination
of an individual whose initial assumption of office is in
connection with an actual or threatened election contest (as
such terms are used in SEC Rule 14a-11 under the 0000 Xxx)
relating to the election of the directors of the Company) shall be
deemed to be a member of the Incumbent Board; or
(iii) approval by the stockholders of LaserSight of
(A) a merger, reorganization or consolidation ("Transaction")
with respect to which persons who were the respective beneficial
owners of LaserSight's common stock immediately before the
Transaction do not, immediately thereafter, beneficially own,
directly or indirectly, more than 60% of the then-outstanding
common shares of the corporation resulting from the Transaction,
(B) a liquidation or dissolution of LaserSight or (C) the sale or
other disposition of all or substantially all of the assets of
LaserSight.
Notwithstanding the foregoing, a Change of Control shall not be deemed
to have occurred if Employee is, by agreement or understanding (written
or otherwise), a participant on his own behalf in a transaction which
causes the Change of Control to occur.
(d) "Compensation" shall mean, with respect to any Person, all
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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 arrangements,
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 accrued for the account of such Person or
otherwise for the direct or indirect benefit of such Person, plus auto
benefits provided to such Person, if any.
(e) "Disability" shall mean the inability, by reason of
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illness or other incapacity, of the Employee substantially to perform
the duties of his then regular employment with the Company, which
inability is reasonably determined by the Company and continues for at
least 90 consecutive days, or for shorter periods aggregating 120 days
during any consecutive twelve-month period.
(f) "Good Reason" shall mean:
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(i) any material breach or default by the Company (and
failure to cure within any applicable grace or cure period) of any
material obligation of this Agreement;
(ii) any material change in the duties to be
performed or titles to be held by the Employee pursuant hereto
either (A) within the twelve (12) month period immediately
after a Change in Control, or (B) without the Employee's prior
written consent, which consent may be withheld for any reason
or for no reason;
(iii) any change in the metropolitan area where the
Employee is required to perform the duties set forth herein
which occurs either (A) within the twelve (12) month period
immediately after a Change in Control, or (B) without the
Employee's consent; which consent may be withheld for any reason
or for no reason;
(iv) any material reduction in the Employee'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 and such reductions are
made for justifiable business reasons; or
(v) Employee has not been named LaserSight's Chief
Operating Officer (or, if such title is then no longer utilized,
the officer in charge of and responsible for all of LaserSight's
operational matters) on or before the second anniversary of the
Effective Date.
(g) "Person" shall mean an individual or a corporation,
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association, partnership, joint venture, organization, business,
individual, trust, or any other entity or organization, including a
government or any subdivision or agency thereof.
(h) "Subsidiary" shall mean as to any Person a corporation,
partnership or other entity of which 25% or more of the 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.
12. Payments. Except as specifically provided herein, all amounts
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payable pursuant to this Agreement shall be paid without reduction regardless of
any amounts of salary, compensation or other amounts which may be paid or
payable to the Employee from any source or which the Employee could have
obtained upon seeking other employment; provided that the Company shall be
permitted to make all payments pursuant to this Agreement net of any legally
required tax withholdings.
13. Expenses. In the event of any litigation between the parties
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relating to this Agreement and their rights hereunder, the prevailing party
shall be entitled to recover all litigation costs and reasonable attorneys' fees
and expenses from the non-prevailing party.
14. Entire Agreement. This Agreement comprises the entire agreement
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between the parties hereto and as of the date of this contract, supersedes,
cancels and annuls any and all prior agreements between the parties hereto with
respect to the Employee's employment by the Company.
15. Severability. If all or any part of this Agreement is declared by
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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 unlawful or
invalid shall, if possible, be construed in a manner that will give effect to
the terms of such portion to the fullest extent possible while remaining lawful
and valid.
16. Successors and Assigns. This Agreement shall be binding upon, and
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inure to the benefit of the parties hereto and their respective heirs,
successors, assigns and personal representatives. The Company may assign this
Agreement to any successor or assignee to its business without the written
consent of the Employee. The Employee may not assign, pledge, or encumber his
interest in this Agreement, or any part thereof, without the written consent of
the Company.
17. Notices. Any notice required or permitted pursuant to the
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provisions of this Agreement shall be deemed to have been properly given if in
writing and when received by certified or registered United States mail, postage
prepaid, by overnight courier, telecopy or when personally delivered, addressed
as follows:
If to the Company:
LaserSight Incorporated
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: President
Fax No.: 000-000-0000
If to the Employee:
D. Xxxxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxx 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 business day of the date of
the telecopy.
18. Amendments and Waivers. Any provision of this Agreement may be
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amended or waived only with the prior written consent of the Company and the
Employee. No failure or delay on the part of either party to this Agreement in
the exercise of any power or right, and no course of dealing between the parties
hereto, shall operate as a waiver of such power or right, nor shall any single
or partial exercise of any power or right preclude any further or other exercise
thereof or the exercise of any other power or right. The remedies provided for
herein are cumulative and not exclusive of any remedies which may be available
to either party at law or in equity. Any waiver of any provision of this
Agreement, and any consent to any departure by either party from the terms of
any provision hereof, shall be effective only in the specific instance and for
the specific purpose for which given. Nothing contained in this Agreement and no
action or waiver by any party hereto shall be construed to permit any violation
of any other provision of this Agreement or any other document or operate as a
waiver by such party of any of his or its rights under any other provision of
this Agreement or any other document.
19. Controlling Law. This Agreement shall be construed in accordance
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with the laws of the State of Florida, except for its choice of law provisions.
The parties do hereby irrevocably submit themselves to the personal jurisdiction
of the United States Federal Court for the Middle District of Florida and do
hereby irrevocably agree to service of such Court's process on them.
20. Headings. Section headings herein are for convenience only
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and shall not affect the meaning or interpretation of the contents hereof.
21. Counterparts. This Agreement may be executed in counterparts, each
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of which is deemed to be an original and all of which taken together constitute
one and the same agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
on its behalf by a duly authorized officer and the Employee has executed this
Agreement, all as of the first day and year written above.
LASERSIGHT INCORPORATED
By: /s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
"EMPLOYEE"
/s/D. Xxxxxxx Xxxxxxxx
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D. Xxxxxxx Xxxxxxxx
