EXHIBIT 10.45
RELOCATION AGREEMENT
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THIS RELOCATION AGREEMENT ("Agreement") is made and entered into as
of the 13th day of October, 1999 and is dated and effective as of April 16, 1998
(the "Effective Date"), by and between LASERSIGHT INCORPORATED, a Delaware
corporation (the "Company"), and XXXXXXX X. XXXXXX, an individual residing in
the State of Florida (the "Executive").
RECITALS
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WHEREAS, the Executive is the Secretary and Chief Financial Officer of
the Company;
WHEREAS, the Company has determined that it would be in the best
interests of the Company to induce the Executive to relocate his principal
residence from the St. Louis, Missouri metropolitan area to the Orlando, Florida
metropolitan area and to remain in the employ of the Company by entering into
this Agreement; and
WHEREAS, on or about April 16, 1998, the Company's Executive
Compensation and Stock Option Committee approved the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Severance. If the Executive's employment is terminated by the
Company without Cause, the Executive shall be entitled to receive, in addition
to all other damages and remedies available to him at law or in equity, a lump
sum severance payment payable within ten (10) business days of such termination
in an amount equal to the Executive's then current annual compensation.
For purposes of this Agreement, the term "Cause" shall mean any of the
following:
(a) the Executive'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;
(b) the Executive's inability to perform his responsibilities due
to his abuse or misuse of alcohol or prescribed drugs or any
use of illegal drugs;
(c) the Executive's commission of theft, embezzlement or fraud against
the Company;
(d) the Executive has willfully damaged the Company's property,
business reputation, or good will; or
(e) the Executive's incompetence, deliberate neglect of duty, or
material breach of this Agreement that is not cured within
thirty (30) days after the Executive is notified of such
incompetence, neglect or breach.
The term "Cause" shall not mean the Executive's bad judgment or negligence, any
act or omission believed by the Executive to have been in or not opposed to the
best interests of the Company, any act or omission lacking the intent of the
Executive to gain a profit to which he is not legally entitled, or any other
matter not specifically described in clauses (a) through (e) above.
2. Employment Relationship. The Company and the Executive
acknowledge and agree that this Agreement shall not be construed as a contract
for employment and that there is not, nor will there be, unless contained in a
separate writing signed by both the Company and the Executive, any express or
implied agreement as to the continued employment of the Executive by the
Company.
3. Payments. Except as specifically provided herein, all amounts
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 Executive from any source or which the Executive 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. The Executive shall not be required to seek other
employment, and there shall be no offset to amounts due hereunder as a result of
any salary, compensation or other amounts the Executive may be paid from other
sources.
4. Expenses. In the event of any litigation between the parties
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.
5. Entire Agreement. This Agreement comprises the entire
agreement between the parties hereto and as of the Effective Date of this
contract, supersedes, cancels and annuls any and all prior agreements between
the parties hereto with respect to the subject matter hereof.
6. Successors and Assigns. This Agreement shall be binding 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 Executive. The Executive may not assign, pledge, or encumber his
interest in this Agreement, or any part thereof, without the written consent of
the Company; provided, however, that the Executive may, without the Company's
prior consent, assign his rights to payment hereunder.
7. Notices. Any notice required or permitted pursuant to the
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 and Chief Executive Officer
Fax No.: (000) 000-0000
If to the Executive:
Xxxxxxx X. Xxxxxx
00000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, 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 7. Telecopy notices must be followed up with the
original by certified mail, postmarked within one (1) business day of the date
of the telecopy.
8. Amendments and Waivers. Any provision of this Agreement may be
amended or waived only with the prior written consent of the Company and the
Executive. 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.
9. Controlling Law. This Agreement shall be construed in 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.
10. Headings. Section headings herein are for convenience only and
shall not affect the meaning or interpretation of the contents hereof.
11. Counterparts. This Agreement may be executed in counterparts, 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 Executive has
executed this Agreement, all as of the Effective Date.
LASERSIGHT INCORPORATED EXECUTIVE
By: /s/Xxxxxxx X. Xxxxxx /s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
