EXHIBIT 10.50
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Original date: March 6, 2000
Amended and Restated as of August 1, 2001
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into as of June 14, 2001, with an effective date of August 1,
2001 (the "Effective Date") by and between LASERSIGHT TECHNOLOGIES, INC., a
Delaware corporation (the "Company") and L. XXXXXXX XXXXXX, an individual (the
"Employee") and hereby amends, restates and supersedes that certain Employment
Agreement between the parties effective March 6, 2000 (the "2000 Agreement"):
W I T N E S S E T H:
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WHEREAS, the parties hereto desire to amend certain of the terms and
conditions of the 2000 Agreement and to restate the 2000 Agreement as
hereinafter set forth; and
WHEREAS, Employee has requested reassignment from the Senior Vice
President of Scientific Affairs, Chief Scientific Officer of the Company as of
June 14, 2001; and
WHEREAS, Company has agreed to reassign the Employee from his current
position as Senior Vice President of Scientific Affairs, Chief Scientific
Officer of the Company as of June 14; and
WHEREAS, Company and Employee desire to continue the employment
relationship on the terms and conditions hereafter set forth;
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS: The 2000 Agreement
is amended and restated in its entirety as follows:
1. Employment of the Employee. Subject to the terms and
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conditions of this Agreement, the Company hereby continues Employee's
employment, and the Employee hereby accepts such continued employment and agrees
to perform the services specified herein.
2. Duties. On and after the Effective Date, Employee shall hold
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the title of and serve as Vice President Special Projects 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, the
duties required to accomplish only those special projects which may be
assigned to Employee from time to time;
(b) Be available to perform the services required as needed,
and shall perform such services at locations mutually agreed to by the
parties, provided that Employee shall only work at Company's premises
when mutually agreed to by Company and Employee; 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 obligations under this Agreement as of the Effective Date, Employee
will receive, during the period this Agreement is in effect, a base salary (the
"Base Salary") which will be calculated at an annual rate of one hundred twenty
five thousand dollars ($125,000). 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. Stock Options. Employee has previously been granted stock
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options (the "Previously Granted Options") in LaserSight Incorporated
("LaserSight") which will vest and be subject to the terms of LaserSight's 1996
Equity Incentive Plan, as amended and restated (the "Equity Incentive Plan") and
the award agreement delivered to Employee pursuant to the Equity Incentive Plan.
The parties acknowledge and agree that the Previously Granted Options shall
continue to be governed by the terms of the Equity Incentive Plan and the
applicable award agreement delivered to Employee by the Company and that this
Agreement does not modify any of the terms of such award agreement. Employee
shall not be eligible to receive any additional stock option grants during the
Term.
5. 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.
6. Expenses. The Company shall reimburse Employee for reasonable
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costs and expenses, including, but not limited to, expenses for travel, lodging
and meals, incurred in connection with the performance of Employee's duties
hereunder. In order for 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.
7. Employee's Authority to Bind Company. Employee has no
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authority to bind or obligate Company in any manner. Employee hereby agrees that
without the Company's prior consent he shall take no actions and shall make no
statements to any person, corporation, government agency, or other entity which
indicates or implies that Employee has any such authority and agrees to
indemnify Company for any loss or damage should Employee violate the provisions
of this Section 7.
8. Non-Disparagement. Employee shall not at any time make any
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statements or comments that might tend to disparage Company or engage in any
conduct that might tend to disparage the Company, its employees, agents,
directors, or officers.
9. Term of Employment.
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(a) The term of this Agreement shall begin on the Effective
Date and shall continue through June 30, 2003 unless sooner
terminated as provided in this Section 9 (the "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 12).
(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 12) 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 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 Term. 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 9(f)(ii), the Employee
must comply with the terms of this Agreement and deliver a
complete release of all claims in favor of the Company and in
a form satisfactory to the Company.
10. 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 10, 11
and 12(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 10, 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.
11. Protection of Confidential Information and Trade Secrets of
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the Company.
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(a) Confidentiality. During the term of this Agreement and
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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
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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
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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
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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 11(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 his becoming employed by the Company 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.
12. 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,
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(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) "Compensation" shall mean, with respect to any
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Person, all payments and accruals, if any, commonly considered to be
compensation, including, without limitation, all wages, salary,
deferred payment arrangements, bonus payments and accruals, profit
sharing 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.
(d) "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.
(e) "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 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.
(f) "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.
"Subsidiary" shall mean as to any Person a corporation,
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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.
13. 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.
14. 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.
15. Entire Agreement. This Agreement comprises the entire
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agreement between the parties hereto and as of the Effective Date, supersedes,
cancels and annuls any and all prior agreements between the parties hereto with
respect to the Employee's employment by the Company including, but not limited
to, the 2000 Agreement.
16. Severability. If all or any part of this Agreement is
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declared by any court or governmental authority to be unlawful or invalid, such
unlawfulness or invalidity shall not serve to invalidate any portion of this
Agreement not declared to be unlawful or invalid. Any portion so declared to be
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.
17. Successors and Assigns. This Agreement shall be binding
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upon, and 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.
18. 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 Technologies, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000
Attn: President
Fax No.: (000) 000-0000
If to the Employee:
L. Xxxxxxx Xxxxxx
1640 Oviedo Grove Circle
Xxxxxx, Xxxxxxx 00000
Each party shall be entitled to specify a different address for the receipt of
subsequent notices by giving written notice thereof to the other party in
accordance with this Section. Telecopy notices must be followed up with the
original by certified mail, postmarked within one business day of the date of
the telecopy.
19. Amendments and Waivers. Any provision of this Agreement may
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be 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.
20. Controlling Law. This Agreement shall be construed in
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accordance 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.
21. Headings. Section headings herein are for convenience only
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and shall not affect the meaning or interpretation of the contents hereof.
22. Counterparts. This Agreement may be executed in counterparts,
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each 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 TECHNOLOGIES, INC.
By: /s/Xxxxxxx X. Xxxxxx
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Title: Chief Executive Officer
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"EMPLOYEE"
/s/L. Xxxxxxx Xxxxxx
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L. Xxxxxxx Xxxxxx
EXHIBIT A
Fringe Benefits
See Attached
The following is a brief summary of benefits offered to Employee by the
Company. Reference should be made to the benefits package supplied by the
Company for a full explanation of each benefit. Each benefit described herein is
subject to the terms, qualifications, restrictions, limitations and conditions
of the Company's benefit programs, as amended from time to time, and benefits
may be changed, modified, terminated, increased or decreased from time to time.
In order for Employee to be eligible for certain Company benefits Employee may
be required to make the contributions required by such benefit plans. The
benefits described on this Exhibit A will be offered to Employee and
administered by the Company in a manner consistent with other employees of the
Company.
1. Health insurance for Employee and family.
2. Disability insurance for Employee.
3. Life insurance for Employee in an amount equal to that which
is in effect for Employee as of the Effective Date.
4. Participation in Company's paid time off program. Employee
will take earned vacation following August 1, 2001 and be paid
in accordance with the Company's policy.
5. Ability to participate in the Company's 401(k) Plan and
receive Company's matching contributions, if and when made1.
6. Company will pay up to $1,000 per month to reimburse Employee
for the rent or lease payment for an apartment in the Orlando,
Florida area for Employee's use during the Term.
7. In accordance with the Company's policies adopted from time to
time, the Company agrees to reimburse the Employee for the
Employee's reasonable expenses incurred in connection with
moving the Employee's household goods currently located in the
Orlando, Florida area to a metropolitan area to be determined;
provided that the Employee submits to the Company at least
three competitive bids from moving companies selected by the
Employee and the Company approves the bid utilized for such
move. Amounts advanced pursuant to this provision shall be
subject to any withholdings as may be required by applicable
law and shall be subject to a reasonable reimbursement dollar
amount.
8. Employee will retain current cell phone number during the
Term. Company shall pay employee xxxx and/or reimburse
Employee for all cell phone charges incurred in order for
Employee to fulfill his duties hereunder in accordance with
the Company's policies regarding the same.
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1 The Company's 401(k) plan does not require the Company to match
employee contributions. It has been the Company's past practice to
match 25% of employee contributions but there can be no assurance
the Company will continue that practice in the future.
