EXHIBIT 10.87
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, entered into on the 20th day of
August, 1999, effective as of the 1st day of June, 1999, is by and between
Insight Laser Centers, Inc., a New York corporation having an office at 0000
Xxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxx
Xxxxxxxxx, an individual residing at 00 Xxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to obtain the services of
the Employee, on its own behalf and on behalf of all existing and future
affiliated entities (as said term, "affiliate", is defined in Regulation 12(b)
under the Securities Exchange At of 1934, as amended) specifically excepting,
however, Sterling Vision, Inc., and the Employee desires to be employed by the
Company upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements
and understandings set forth herein, and for the other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Company and the Employee hereby agree as follows:
1. Term of Employment.
The Company hereby employs the Employee to render services to
the Company in the positions and with the duties and responsibilities described
in Section 3 hereof commencing as of June 1, 1999 (the "Effective Date") and
continuing thereafter for a period of five (5) years, unless earlier terminated
in accordance with the provisions of Section 5 hereof. For purposes of this
Agreement, the "Term of Employment" shall be the five (5) year period commencing
on the Effective Date, subject to earlier termination pursuant to Section 5
hereof.
2. Voting by Board of Directors.
It is expressly understood and agreed that in the event any action
and/or decision, required and/or permitted to be taken and/or made (or not taken
and/or made) by the Company under this Agreement (i.e. in connection with the
Employee's employment by the Company) requires the prior approval of the
Company's Board of Directors (the "Board") such approval shall require the vote
of a majority of the members of such Board (at a meeting at which a
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quorum is present or, if telephonic, participates) without the Employee voting
thereon.
3. Position, Duties, Responsibilities.
(a) Position. The Employee hereby accepts such employment and agrees to
serve as the President and Chief Executive Officer of the Company, as well as in
such additional, executive officer position(s) as the Board may, from time to
time, reasonably designate. The Employee shall devote his best efforts and his
full business time and attention to the performance of the services customarily
incidental to such offices. The Employee, in his capacity as the President and
CEO of the Company, shall: (i) have the right to participate in the selection of
any new and/or additional senior executive officers of the Company; and (ii) be
responsible for the normal, day-to-day operations thereof, it being understood
that the approval of the Company's Board shall be required prior to the
Employee, on behalf of the Company, undertaking and/or entering into any
extraordinary and/or non-recurring, material transactions.
(b) Other Activities. Except upon the prior written
consent of the Board, the Employee, during the Term of Employment, will not: (i)
accept any other employment; provided, however, that until March 30, 2000, the
Employee may render consulting services, on a part-time basis, to Xxx-Xxxx.xxx
(f/k/a Ergovision, Inc.); or (ii) engage, directly or indirectly, in any other
business activity (whether or not pursued for pecuniary advantage) that is or
may be competitive with, or that might place him in a competing position to that
of, the Company including, but not limited to, serving on the board of directors
of any other corporation engaged in a business that is competitive to the
business of the Company and/or any of its affiliates, it being understood that
Employee may: (i) serve on up to three (3) boards of directors of other,
non-competitive corporations; and (ii) own up to five (5%) percent of the equity
interests in any publically traded company.
4. Salary; Benefits; Expenses.
(a) Salary. In consideration of the services to be rendered hereunder,
the Employee, during the Term of Employment, shall be paid a salary computed at
the rate of One Hundred Thousand ($100,000) Dollars per annum, payable in equal,
semi-monthly installments.
(b) Benefits and Other Arrangements. In addition to the compensation
set forth in Subsection 4(a) hereof: (i) the Company shall, within ten (10) days
after the expiration of each month during the Term of Employment, reimburse the
Employee for a portion of his automobile expenses, in the amount of Five Hundred
($500) Dollars per month; and (ii) the Employee shall be entitled to participate
in any plan, arrangement or policy of the Company providing for medical benefits
and/or sick leave on substantially the same terms as are generally then made
available to other employees of the Company.
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(c) Vacation. The Employee shall be entitled to a three (3) week, paid
vacation during each year of the Term of Employment, such vacation to be subject
to the Company's general policies, as the same may be amended from time to time;
provided, however, that if the Employee, due to his work load, is restricted
from taking said vacation (or any portion thereof) during any year of the Term
of Employment, said unused vacation days shall carry over to the ensuing year.
(d) Expenses: The Employee shall be entitled to reimbursement for all
ordinary and necessary business expenses hereafter incurred in the performance
of his duties hereunder (including, but not limited to, gas consumed in the
Employee's business use of his automobile, the use of a digital, cellular
telephone and a home fax machine), in each case subject to the Company's receipt
of adequate substantiation and/or documentation thereof.
(e) Office: The Employee shall be afforded the use of an office (and,
to the extent required, reasonable secretarial assistance) at the Company's
laser surgery center to be located at 000 Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx;
provided, however, that, from time to time, the Company shall use reasonable
efforts to afford the Employee with the use of an office and part-time
secretarial assistance at the Company's principal executive offices presently
located in East Meadow, New York.
(f) Surrender/Cancellation of Employee Stock Options. By his execution
hereof, the Employee agrees to his surrender of, and cancellation, by Sterling
Vision, Inc. ("SVI"), an aggregate of seventy thousand (70,000) of the employee
stock options previously granted to (and vested in) the Employee pursuant to
that certain Non-Qualified Stock Option Agreement, dated December 15, 1995,
between SVI and the Employee, the balance of such options previously issued to,
and vested in, the Employee not otherwise being affected thereby.
5. Termination.
(a) The employment of the Employee hereunder may be terminated by the
Company on not less than thirty (30) days' prior written notice to the Employee
in the event that the Employee is determined to be permanently disabled. As used
in this Section, the Employee shall be deemed to be "permanently disabled" if
the Employee has been substantially unable to discharge his duties and
obligations hereunder, by reason of illness, accident or disability, for a
period of one hundred twenty (120) or more consecutive days. In the event the
employment of the Employee is terminated because of a permanent disability, the
Employee shall receive (net of all benefits available to the Employee under any
Company provided policy of disability insurance available to him) compensation
until the earlier of the date which is three (3) months after the date on which
the Employee first became disabled and the date on which the Term of Employment
shall expire pursuant to Section 1 hereof, payable at the rate and on the terms
provided
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hereby as if he had not been terminated.
(b) The employment of the Employee hereunder may be terminated by the
Company for cause, at any time during the Term of Employment, upon written
notice from the Company documenting that, in the opinion of the Board, the
Employee shall have: (i) wilfully refused or failed, after twenty (20) days'
prior written notice to him that such refusal or failure would constitute a
default hereunder, to perform his duties hereunder, other than any such failure
resulting from the Employee's incapacity due to illness or injury; (ii) been
guilty of a material or willful breach of any of the material terms or
provisions of this Agreement or any other material legal obligation to the
Company; (iii) demonstrated gross negligence or willful misconduct, in any
material respect, in the execution of his assigned duties; or (iv) been
convicted of a felony or other serious crime; provided, however, that in the
event th Employee shall dispute the basis (bases) upon which such decision was
made by the Board, the Employee shall have the right, within such twenty (20)
day period, to call a special meeting of the Board at which the Employee will be
permitted to dispute such action taken by the Board; and, in the event the
Board, at such special meeting, shall confirm the action previously taken by it,
the Employee shall have an additional period of ten (10) days (from and after
the date of said special meeting, if any), within which to cure the default(s)
which were the basis (bases) of such Board action.
(c) The employment of the Employee hereunder shall automatically be
deemed terminated on the date of the Employee's death.
(d) If the Employee's employment is terminated pursuant to Subsections
5(b) or (c) above, the Employee shall be entitled to, and the Company's
obligation shall be limited to, the payment of the compensation accrued under
Subsections 4(a), (b) and (c) hereof (together with all amounts then payable
pursuant to Subsection 4(d) hereof) to the date of such termination or, in the
case of a termination under Subsection 5(a) hereof, to the date specified
therein.
6. Confidentiality.
(a) The Employee shall not, during the Term of Employment or at any
time thereafter, use (other than in the performance of his duties to the
Company) or disclose to any person, firm or corporation (except as may be
required by law or with the prior written approval of the Board) any information
concerning the business, inventions, discoveries, clients, affairs or other
trade secrets of the Company that he may have acquired in the course of, or as
an incident to, his employment by the Company (including his employment, by SVI,
prior to the date hereof).
(b) The obligations of confidentiality and non-use set forth in
Subsection 6(a) above shall not apply to information: (i) which is or becomes
published in any written document or otherwise is or becomes a part of the
public domain without breach of the aforementioned obligations by the Employee;
(ii) which the Employee
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can establish was already in his possession and not subject to a secrecy
obligation at the time he encountered such information in the course of, or as
an incident to, his employment by the Company or SVI, as the case may be; or
(iii) which is required to be disclosed by the Employee pursuant to an order of
a court of competent jurisdiction.
(c) As a material inducement for the Company to enter into this
Agreement, and expressly in partial exchange for the performance of the
Company's obligations under this Agreement, the Employee hereby covenants and
agrees that during the Term of Employment and for a period of one (1) year
thereafter, he will not, either on his own account, or directly or indirectly in
conjunction with or on behalf of any person, firm or company:
(i) Solicit or employ, or attempt to solicit or employ, any person who
is then or has, within the six (6) month period prior thereto, been an officer,
director or employee of the Company or any of its affiliates, whether or not
such a person would commit a breach of his or his contract of employment, if
any, by reason of leaving the service of the Company or any of its affiliates;
or
(ii) Solicit the business of any person, firm or company which is then,
or has been, at any time during the preceding six (6) month period prior to such
solicitation, a customer, client, contractor, supplier or agent of the Company
or of any of its affiliates.
(d) As a further material inducement for the Company to enter into this
Agreement, and expressly in partial exchange therefor, the Employee hereby
covenants and agrees that in the event the employment of the Employee hereunder
is terminated "for cause", or in the event the Employee leaves the employ of the
Company in breach of his obligations hereunder, the Employee, for a period of
one (1) year thereafter, shall not carry on or be engaged, concerned or
interested in, or devote any material time to the affairs of, any trade or
business competing with the then trade or business of the Company and which is
then located within the City of New York, Nassau County or Westchester County
and/or within a twenty-five (25) mile radius of any laser surgery center then
owned and/or being operated by the Company.
(e) It is expressly understood and agreed that nothing herein contained
shall bar the Company's right to obtain preliminary injunctive relief against
any threatened conduct that is and/or would likely to be, in violation of the
Employee's obligations hereunder, under customary equity rules, including
applicable rules for obtaining restraining orders and preliminary injunctions.
The Employee agrees that the Company may have such injunctive relief, without
bond, but upon due notice, in addition to such further and other relief as may
be available, at equity or law.
7. Notices.
Any notice, request, claim, demand or other communication hereunder to
any party shall be effective upon receipt (or refusal
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of receipt) and shall be in writing and delivered personally or sent by telex,
telecopy, or certified or registered mail, return receipt requested, postage
prepaid, as follows:
(i) If to the Company, addressed to its principal executive offices to
the attention of its General Counsel, with a copy to be simultaneously delivered
to the Chairman of the Board; or
(ii) If to the Employee, to him at the address set forth above, with a
copy to be simultaneously delivered c/o Insight Laser Centers, 000 Xxxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or
(iii) at any such other address as either party shall have specified by
written notice given to the other as herein provided.
8. Entire Agreement.
The terms of this Agreement are intended by the parties to be the final
expression of their agreement with respect to the employment of the Employee by
the Company and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this Agreement shall
constitute the complete and exclusive statement of its terms and that no
extrinsic evidence, whatsoever, may be introduced in any judicial,
administrative or other legal proceeding involving this Agreement.
9. Amendments; Waivers.
Except as otherwise set forth herein, this Agreement may not be
modified, amended or terminated except by an instrument, in writing, signed by
the Employee and by the Chairman of the Company's Board. By an instrument in
writing similarly executed, either party may waive compliance by the other party
with any provision of this Agreement that such other party was or is obligated
to comply with or perform; provided, however, that such waiver shall not operate
as a waiver of, or estoppel with respect to, any other or subsequent failure. No
failure to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy or power provided
for herein, or by law, or in equity.
10. Severability; Enforcement.
If any provision of this Agreement, or the application thereof to any
person, place or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable or void, the remainder of this
Agreement and such provisions as applied to other persons, places and
circumstances, shall remain in full force and effect.
11. Assignability.
(a) In the event that the Company shall merge or
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consolidate with any other corporation, partnership or business entity, or all
or substantially all the Company's business or assets shall be transferred, in
any manner, to any other corporation, partnership or business entity, such
successor shall thereupon succeed to, and be subject to, all rights, interests,
duties and obligations of, and shall thereafter be deemed for all purposes
hereof to be, the Company hereunder.
(b) This Agreement is personal in nature, and none of the parties
hereto shall, without the prior written consent of the other, assign or transfer
this Agreement or any of its or his rights or obligations hereunder, except by
operation or law or pursuant to the terms of this Section 11.
(c) Nothing expressed or implied herein is intended or shall be
construed to confer upon, or give to any person, other than the parties hereto,
any right, remedy or claim under, or by reason of, this Agreement, or of any
term, covenant or condition hereof.
12. Restrictive Covenants:
To the extent that a restrictive covenant contained herein may, at any
time, be more restrictive than permitted under the laws of any jurisdiction
where this Agreement may be subject to review and interpretation, the terms of
such restrictive covenant shall be those allowed by law and the covenant shall
be deemed to have been revised accordingly.
13. Governing Law.
The validity, interpretation, enforceability and performance of this
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.
14. Employee's Representation and Acknowledgment.
The Employee hereby represents that he is free to enter into this
Agreement and is not under any contractual restraint which could prohibit him
from satisfactorily performing his duties to the Company hereunder. The Employee
also acknowledges: (i) that he has consulted with or has had the opportunity to
consult with independent counsel of his own choice concerning this Agreement and
has been advised to do so by the Company; and (ii) that he has read and
understands this Agreement, is fully aware of its legal effects and has entered
into it freely, based upon his own judgment.
15. Arbitration.
Any claim, controversy or dispute between the Employee and the Company,
or any employee, director or member of the Company, involving, related to and/or
arising from the construction or application of any of the terms, provisions or
conditions of this Agreement or otherwise arising out of, or related to, this
Agreement, shall be determined by arbitration in accordance with the then
current commercial arbitration rules of the American
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Arbitration Association, and judgment on the award rendered by the arbitrator
may be entered by any court having jurisdiction thereof. The location of the
arbitration shall be Nassau County, New York.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
INSIGHT LASER CENTERS, INC.
By: /s/ Xxxxxx Xxxxx
---------------------
Title: Xxxxxx Xxxxx
Chairman of the Board
EMPLOYEE
/s/ Xxxxxx Xxxxxxxxx
-----------------------
Xxxxxx Xxxxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
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