Employment Agreement - TLC The Laser Center Inc. and Thomas G. O'Hare
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 31 day of July,2000 between TLC THE LASER
CENTER INC., a corporation incorporated under the laws of the Province of
Ontario (the "Corporation"), and Thomas G. O'Hare (the "Employee").
WHEREAS, the Corporation and the Employee wish to enter into this
Agreement to set forth the rights and obligations of each of them with respect
to the Employee's employment with the Corporation;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Corporation and the Employee agree as follows:
1. Definitions
1.1. In this Agreement,
1.1.1."Affiliate" has the meaning attributed to such term in the Business
Corporations Act (Ontario) as the same may be amended from time to time,
and any successor legislation thereto;
1.1.2. "Agreement" means this agreement and all schedules attached to this
agreement, in each case as they may be amended or supplemented from time
to time, and the expressions "hereof," "herein," "hereto," "hereunder,"
"hereby" and similar expressions
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refer to this agreement and unless otherwise indicated, references to
sections are to sections in this agreement;
1.1.3. "Salary" has the meaning attributed to such term in section 5.1;
1.1.4. "Benefits" has the meaning attributed to such term in section 5.4;
1.1.5. "Business Day" means any day, other than Saturday, Sunday or any
holiday on which the employees of the Corporation are not required to
report for work;
1.1.6. "Change of Control" for the purposes of this Agreement shall be
deemed to have occurred when:
1.1.6.1. any Person acquires or becomes the beneficial owner
of, or a combination of Persons acting jointly and in concert
acquires or becomes the beneficial owner of, directly or indirectly,
more than 40% of the voting securities of the Corporation, whether
through the acquisition of previously issued and outstanding voting
securities, or of voting securities that have not been previously
issued, or any combination thereof, or any other transaction having
a similar effect;
1.1.6.2. the Corporation amalgamates with one or more
corporations other than a Subsidiary;
1.1.6.3. the Corporation sells, leases or otherwise disposes
of all or substantially all of its assets, whether pursuant to one
or more transactions;
1.1.6.4. any Person not part of existing management of the
Corporation or any Person not controlled by the Corporation or by
any Affiliate enters into any arrangement to provide management
services to the Corporation which results in either (i) the
termination by the Corporation of the employment
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of any two of the Chief Executive Officer, Chief Operating Officer,
Chief Financial Officer and General Counsel for any reason other
than Just Cause; or (ii) the termination by the Corporation for any
reason other than Just Cause of the employment of all such senior
executive personnel for any reason other than Just Cause within six
months of the date that such arrangement is entered into;
1.1.6.5. the Corporation enters into any transaction or
arrangement which would have the same or similar effect as the
transactions referred to in 1.1 .6.1, 1.1.6.2, 1.1.6.3 or 1.1.6.4
above.
1.1.7. "Confidential Information" means all confidential or proprietary
information, intellectual property (including trade secrets) and
confidential facts relating to the business or affairs of the Corporation
or any of its Subsidiaries which the Corporation treats as confidential or
proprietary;
1.1.8. "Disability" means the mental or physical state of the Employee
such that the Employee has been unable as a result of illness, disease,
mental or physical disability or similar cause to fulfill his obligations
under this Agreement for any 6 month period (whether or not consecutive)
in any consecutive 12 month period;
1.1.9. "Employment Period" has the meaning attributed to such term in
section 4;
1.1.10 "Good Reason" means:
1.1.10.1. without the consent of the Employee, any material
change or series of material changes in the responsibilities or
status of the Employee with the Corporation, such that immediately
after such change or series of changes the responsibilities and
status of the Employee are materially diminished in comparison to
his responsibilities and status immediately prior to such change or
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series of changes, except in connection with the termination of the
Employee's employment by the Corporation for Just Cause or in
connection with the Employee's death, Disability or Retirement or a
voluntary resignation by the Employee other than a resignation for
Good Reason;
1.1.10.2. a reduction (or series of reductions) of more than
ten percent in the aggregate by the Corporation in the Employee's
Salary as in effect on the date hereof or as the same may be
increased from time to time;
1.1.10.3. the taking of any action by the Corporation which
would materially adversely affect the Employee's participation in,
or materially reduce the Employee's Benefits and other similar plans
in which the Employee is participating at the date hereof (or such
other plans as may be implemented after the date hereof that provide
the Employee with substantially similar benefits), or the taking of
any action by the Corporation which would deprive the Employee of
any material fringe benefit enjoyed by him at the date hereof;
1.1.10.4. without the Employee's consent, the requirement that
the Employee be based for employment purposes anywhere other than
the Corporation's principal executive offices except for required
travel on the Corporation's business;
1.1.11. "Just Cause" means the willful failure of the Employee to
properly carry out his duties after written notice by the Corporation
of the failure to do so and an opportunity for the Employee to correct
the same within 30 days from the date of receipt of such written notice
from the Corporation, or theft, fraud or dishonesty or material
misconduct
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by the Employee involving the property, business or affairs of the
Corporation or its Subsidiaries or the carrying out of the Employee's
duties;
1.1.12. "Person" means any individual, partnership, limited partnership,
joint venture, syndicate, sole proprietorship, LLC or other similar entity
company or corporation with or without share capital, unincorporated
association, trust, trustee, executor, administrator or other legal
personal representative, regulatory body or agency, government or
governmental agency, authority or entity however designated or
constituted;
1.1.13 "Restricted Period" means, as the case may be, (i) the Salary
Continuance Period provided for in section 9; (ii) one year if the
employment of the Employee is terminated pursuant to section 10.2; or
(iii) two years if the employment of the Employee is terminated pursuant
to section 10.3 hereof;
1.1.14. "Retirement" means Retirement in accordance with the Corporation's
retirement policy;
1.1.15 "Salary Continuance Period" has the meaning ascribed to such term
in section 9 hereof;
1.1.16 "Subsidiaries" has the meaning attributed to such term by the
Business Corporations Act (Ontario) as the same may be amended from time
to time and any successor legislation thereto;
1.1.17 "Year of Employment" means any 12 month period commencing on August
7, 2000 or on any anniversary of such date.
2. Employment of the Employee
The Corporation shall employ the Employee, and the Employee shall serve
the Corporation, in the position of President and Chief Operating Officer on the
conditions and for
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the remuneration hereinafter set out. In such position, the Employee shall
perform and fulfill such duties and responsibilities as the Corporation may
designate from time to time, including, without limitation, those duties set out
in Schedule 2.1 hereof. The Employee shall report to the Chief Executive Officer
of the Corporation.
3. Performance of Duties
During the Employment Period, the Employee shall faithfully, honestly and
diligently serve the Corporation and its Subsidiaries as contemplated above. The
Employee shall devote all of his working time and attention to his employment
hereunder and shall use his best efforts to promote the interests of the
Corporation. Notwithstanding the foregoing, provided that such activities take
only a minimal amount of time, the Employee will continue to be permitted to
serve on the Board of Directors of the Fleming/Outback Steakhouse Joint Venture.
4. Employment Period
Subject to the terms and conditions hereinafter provided, the term of the
Executive's employment shall commence on August 7, 2000 (the "Effective Date").
Upon the Effective Date, the Executive's employment shall continue for a term of
three years unless and until sooner terminated under the conditions of Section 8
(the "Employment Period"). Provided that the Agreement has not been terminated
in accordance with the provisions of Section 8 on each anniversary after the
initial three year term of the Effective Date, the Agreement shall automatically
be extended for a period of 12 months unless either party gives the other party
3 months written notice prior to the end of such 12 month period that the term
shall not be extended for a further period of 12 months.
5. Remuneration
5.1. Salary. The Corporation shall pay the Employee an annual salary minus
applicable deductions and withholdings, in respect of each Year of Employment in
the Employment Period calculated at the rate of $325,000 per annum (the
"Salary"), payable in equal installments according to the Corporation's regular
payroll practices. The Salary shall, in the sole and absolute discretion of the
board of directors of the Corporation, be subject to an increase on the basis of
an annual review, and the first such review shall occur no later than September
30, 2001.
5.2 Bonus Remuneration.
5.2.1 Signing Bonus. On the Effective Date, the Corporation shall pay to the
Employee a signing bonus of $50,000 (the "Signing Bonus"). The Signing Bonus
shall be satisfied through a payment of a cash bonus of $15,000 and the total
number of common shares of the Corporation
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that is equal to $35,000 divided by the closing price of such shares on NASDAQ
on the Effective Date. Upon issuance the shares shall, subject to the provisions
of any applicable securities laws, be fully vested and shall not be subject to
any restrictions.
5.2.2 Performance Bonus. The Executive shall, in respect of each Year of
Employment during the Employment Period, be entitled to bonus remuneration on
the basis set out in Schedule 5.2.
5.3. Stock Options. Upon the execution date of this Agreement, the Employee will
be granted 250,000 stock options. One third of such options shall vest on each
of the first, second, and third anniversaries of the Effective Date. These
options will be subject to the terms of the Corporation's share option plan and
will be exercisable for a period of five years from the date that such options
vest. In addition to the stock options granted to the Employee on the date
hereof, the Employee shall, in respect of each Year of Employment, receive such
stock options, if any, as the board of directors of the Corporation, in its sole
and absolute discretion may, pursuant to the terms of the Corporation's share
option plan, authorize; provided, however, that the first such grant shall be
considered after the third anniversary of the Effective Date.
5.4. Benefits. The Corporation shall provide to the Employee, in addition to
Salary and stock options, if any, the benefits (the "Benefits"') described in
Schedule 5.4, such Benefits to be provided in accordance with and subject to the
terms and conditions of the applicable plan relating thereto in effect from time
to time.
5.5. Pro-Rata Entitlement in the Event of Termination. If the Employee's
employment is terminated pursuant to section 8 or section 10 or if the Employee
dies during the Employment Period, the Employee shall be entitled to receive in
respect of his entitlement to Salary, and the Corporation shall be required to
pay in respect thereof, only that portion of the Salary in respect
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of the Year of Employment representing the number of days the Employee actually
worked. For greater certainty, the Employee shall not be entitled to any bonus
in the event that his employment is terminated pursuant to section 8 or 10
hereof.
6. Expenses
Subject to the terms of the Corporation's expense policy, the Corporation
shall pay, or reimburse the Employee for, all authorized and appropriate travel
and out-of-pocket expenses reasonably incurred or paid by the Employee in the
performance of his duties and responsibilities, upon presentation of expense
statements or receipts or such other supporting documentation as the Corporation
may reasonably require.
7. Vacation
The Employee shall be entitled during each Year of Employment, during the
Employment Period to vacation with pay of five weeks. Vacation shall be taken by
the Employee at such time(s) as may be acceptable to the Corporation. Except
with the prior written consent of the Chief Executive Officer (i) no more than
two weeks of vacation shall be taken consecutively, and (ii) the vacation
entitlement earned in a Year of Employment cannot be carried forward to a
subsequent Year of Employment. Notwithstanding the foregoing, in the event that
the Employee's employment is terminated pursuant to section 8 or section 10, the
Employee shall not be entitled to receive any payment in lieu of any vacation to
which he was entitled and which had not already been taken by him.
8. Termination
8.1. Notice. The Employee's employment may, subject to section 10 hereof, be
terminated at any time:
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8.1.1 by the Corporation without prior notice and without obligation to the
Employee for reasons of Just Cause;
8.1.2. by the Corporation for any reason other than Just Cause, including the
occurrence of Disability;
8.1.3. or by the Employee on one month's notice to the Corporation. The
Employee's employment shall be automatically terminated, without further
obligation to the Employee, in the event of his death.
8.2. Effective Date. The effective date on which the Employee's employment shall
be terminated shall be:
8.2.1. in the case of termination under section 8.1.1 or 8.1.2, the day the
Employee is deemed, under section 17, to have received notice from the
Corporation of such termination;
8.2.2 in the case of termination under section 8.1.3, on the date one month
after notice to the Corporation; and
8.2.3. in the event of the death of the Employee, on the date of his death.
9. Rights of Employee on Termination
Where the Employee's employment under this Agreement has been terminated
by the Corporation under section 8.1.2, the Employee shall be entitled, upon
receipt by the Corporation of a release in a form acceptable to the Corporation,
to continue to receive from the Corporation, in addition to accrued but unpaid
Salary, if any, Salary and Benefits for a period of 18 months following the date
the Employee received notice of termination (the "Salary Continuance Period").
At the end of each month during the Salary Continuance Period, the Employee
agrees to provide the Corporation with a statement of all income that the
Employee earned during that
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month from the Employee's employment or self-employment activities. The amount
payable to the Employee hereunder by the Corporation in the month following
receipt of such statement will be reduced by one dollar for each two dollars of
income that the Employee received in the preceding month. If, during any
consecutive 12-month period in the Salary Continuance Period, the Employee earns
an amount that is equal to or greater than the Salary that the Employee earned
while he was employed by the Corporation, the Employee will be paid a lump sum
equal to 50% of the remaining payments provided for hereunder. For greater
certainty, payments made to the Employee in respect of his prior employment with
Host Marriott Services Corporation shall not be included in any determination of
the Employee's earnings pursuant to this section 9.
Except as provided above in this section and subject to section 10, where
the Employee's employment has been terminated by the Employee or by the
Corporation for any reason, the Employee shall not be entitled to receive any
payment as severance pay, in lieu of notice, or as damages.
10. Change of Control
10.1. Termination of Employment by the Corporation for Just Cause. Following a
Change of Control, the Corporation may terminate the Employee's employment at
any time without notice or further obligations to the Employee under this
Agreement for reasons of Just Cause. Following a Change of Control the Employee
shall not be deemed to have been terminated for Just Cause unless and until
there has been delivered to the Employee a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters of the entire membership of
the board of directors of the Corporation (excluding the Employee if the
Employee is at the time a director of the Corporation) at a meeting of the board
called and held for the purpose (after reasonable notice to the Employee),
finding that in the good faith opinion of the Board the
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Employee's conduct constituted Just Cause and specifying the particulars
thereof. The date on which such resolution is given to the Employee shall be the
effective date of any termination pursuant to this section 10.1.
10.2. Termination by the Employee Without Good Reason. Notwithstanding the
provisions of section 8 hereof, if at any time within six months following a
Change of Control the Employment of the Employee is voluntarily terminated by
the Employee for any reason other than (i) Good Reason, Disability, death, or
Retirement; or (ii) by the Corporation for Just Cause, the Employee shall be
entitled to receive, and the Corporation shall pay to the Employee immediately
following termination, a cash amount equal to the Employee's annual Salary, less
applicable deductions and withholdings.
10.3. Termination of Employment Without Just Cause or for Good Reason.
Notwithstanding the provisions of section 8 and section 10.2 hereof, if at any
time within 24 months following a Change of Control, the Employee's employment
is terminated, (i) by the Corporation other than for Just Cause; or (ii) by the
Employee for Good Reason, the following provisions shall apply:
10.3.1. the Employee shall be entitled to receive, and the Corporation shall pay
to the Employee immediately following termination, a cash amount equal to two
times the Employee's annual Salary, less applicable deductions and withholdings;
10.3.2. if at the date of termination of the Employee's employment, the Employee
holds options for the purchase of shares under a share option plan, all options
so held shall, notwithstanding the terms of the Corporation's share option plan,
(i) immediately vest to the extent they have not already vested at such date;
and (ii) (A) continue to be held on the same terms and conditions as if the
Employee continued to be employed by the Corporation or (B) if the Employee so
elects in
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writing within 90 days after the date of termination, be purchased by the
Corporation at a cash purchase price equal to the amount by which the aggregate
"fair market value" of the shares subject to such options exceeds the aggregate
option price for such shares, provided that for this purpose, "fair market
value" means the higher of: (i) the average of the closing prices for the shares
of the same class of the Corporation on NASDAQ for each of the last 10 days
prior to the date that the Employee's employment was terminated; and (ii) if the
Change of Control involved the purchase and sale of such shares, the average
value of the cash consideration paid to the shareholders of the Corporation in
connection with the transactions resulting in the Change of Control.
For purposes of this Agreement, the Employee's employment shall be deemed
to have been terminated following a Change of Control by the Corporation without
Just Cause or by the Executive with Good Reason, if (i) the Employee's
employment is terminated by the Corporation without Just Cause prior to a Change
of Control and such termination was at the request or direction of a Person who
has entered into an agreement with the Corporation or any shareholder of the
Corporation, the consummation of which would constitute a Change of Control;
(ii) the Employee terminates his employment with Good Reason prior to a Change
of Control and the circumstance or event which constitutes Good Reason occurs at
the request or direction of a Person who has entered into an agreement with the
Corporation or any shareholder of the Corporation, the consummation of which
would constitute a Change of Control; or (iii) the Employee's employment is
terminated by the Corporation without Just Cause prior to a Change of Control
and the Employee reasonably demonstrates that such termination is otherwise in
connection with or in anticipation of a Change of Control which actually occurs.
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For greater certainty, this section 10(3) does not apply in the event of the
termination of the employment of the Employee as a result of death, Disability
or Retirement or by the Corporation for Just Cause or, subject to section 10.2,
by the Employee without Good Reason.
10.4 Limitation on Payments Following a Change in Control
Notwithstanding any other provision of this Agreement, if any payment to
or for the benefit of the Employee under this Agreement either alone or together
with other payments to or for the benefit of the Employee would constitute a
"parachute payment" (as defined in Section 280G of the Internal Revenue Code of
1986, as amended (the "Code")), the payments under this Agreement shall be
reduced to the largest amount that will eliminate both the imposition of the
excise tax imposed by Section 4999 of the Code and the disallowance of
deductions to the Company under Section 280G of the Code for any such payments.
The amount and method of any reduction in the payments under this Agreement
pursuant to this Section 10.4 shall be as reasonably determined by the
Compensation Committee of the Board of Directors of the Company.
10.5 No Obligation to Mitigate
The Employee shall not be required to mitigate the amount of any payment
or Benefits provided for in this Agreement by seeking other employment or
otherwise, nor (except as specifically provided herein), shall the amount of any
payment provided for in this Agreement be reduced by any compensation earned by
the Employee as a result of employment by another employer after termination or
otherwise.
11. Relocation
The Employee understands the importance to the Corporation of his
relocating with his family to the metropolitan area where the Corporation's
principal offices are located and will use
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good judgment and discretion, taking into account all relevant factors, toward
completion of such a move after June 30, 2002. Prior to the date that the
Employee relocates, the Corporation will provide the Employee with an apartment
and a per diem. The Employee agrees to spend an average of three business days a
week in the Corporation's offices in the Greater Toronto Area. The parties
acknowledge that prior to relocating, the Employee's principal office will be
located in Bethesda Maryland. The Corporation will reimburse the Executive for
all relocation and out of pocket moving expenses to a maximum of $50,000.
12. Non-Competition
The Employee shall not, during the (i) Employment Period; (ii) the
Restricted Period; and (iii) for a period of one year following the Restricted
Period, directly or indirectly, in any manner whatsoever including, without
limitation, either individually, or in partnership, jointly or in conjunction
with any other Person, or as employee, principal, agent, director or
shareholder:
12.1. be engaged in any undertaking;
12.2. have any financial or other interest (including an interest by way of
royalty or other compensation arrangements) in or in respect of the business of
any Person which carries on a business in Canada and the United States; or
12.3. advise, lend money to, guarantee the debts or obligations of or permit the
use of the Employee's name or any parts thereof by any Person engaged in the
refractive laser corrective surgery business or which competes or competed
directly or indirectly with the Corporation or any of its Subsidiaries, in
Canada and the United States, during the Employment Period or at the end
thereof, as the case may be. Notwithstanding the foregoing, nothing herein shall
prevent the Employee from owning not more than 5% of the issued shares of a
corporation, the shares of which are listed on a recognized stock exchange or
traded in the over the counter market in
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Canada or the United States, which carries on a business which is the same as or
substantially similar to or which competes with or would compete with the
business of the Corporation or any of its Subsidiaries.
13. No Solicitation of Patients, Customers or Suppliers
The Employee shall not, during (i) the Employment Period; (ii) the
Restricted Period; and (iii) for a period of 1 year following the Restricted
Period, directly or indirectly, contact or solicit any patients, customers or
suppliers of the Corporation or any of its Subsidiaries for the purpose of
selling to those patients or customers or buying from any suppliers any products
or services which are the same as or substantially similar to, or in any way
competitive with, the refractive laser corrective surgery products or services
sold by the Corporation or any of its Subsidiaries during the Employment Period
or at the end thereof, as the case may be. For the purpose of this section, a
designated patient or customer means a Person who was a patient or customer of
the Corporation or of any of its Subsidiaries during some part of the Employment
Period.
14. No Solicitation of Employees
The Employee shall not, during (i) the Employment Period; (ii) the
Restricted Period; and (iii) a period of one year following the Restricted
Period, directly or indirectly, employ or retain as an independent contractor
any employee of the Corporation or any of its Subsidiaries or induce or solicit,
or attempt to induce, any such person to leave his/her employment.
15. Confidentiality
The Employee shall not, either during the Employment Period or at any time
thereafter, directly or indirectly, use or disclose to any Person any
Confidential Information; provided,
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however, that nothing in this section shall preclude the Employee from
disclosing or using Confidential Information if:
15.1. the Confidential Information is available to the public or in the public
domain at the time of such disclosure or use, without breach of this Agreement;
or
15.2. disclosure of the Confidential Information is required to be made by any
law, regulation, governmental body, or authority or by court order.
The Employee acknowledges and agrees that the obligations under this section are
to remain in effect in perpetuity and shall exist and continue in full force and
effect notwithstanding any breach or repudiation, or alleged breach or
repudiation, by the Corporation of this Agreement.
16. Remedies
The Employee acknowledges that a breach or threatened breach by the
Employee of the provisions of any of sections 12 to 15 inclusive will result in
the Corporation and its shareholders suffering irreparable harm which is not
capable of being calculated and which cannot be fully or adequately compensated
by the recovery of damages alone. Accordingly, the Employee agrees that the
Corporation shall be entitled to temporary and permanent injunctive relief,
specific performance and other equitable remedies, in addition to any other
relief to which the Corporation may become entitled.
17. Notices
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by prepaid first-class mail, by
facsimile or other means of electronic communication or by hand-delivery as
hereinafter provided, except that any notice of termination by the Corporation
under section 8 or section 10 shall be hand-delivered or given by
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registered mail. Any such notice or other communication, if mailed by prepaid
first-class mail, shall be deemed to have been received on the fourth Business
Day after the post-marked date thereof, or if mailed by registered mail, shall
be deemed to have been received on the day such mail is delivered by the post
office, or if sent by facsimile or other means of electronic communication,
shall be deemed to have been received on the Business Day following the sending,
or if delivered by hand shall be deemed to have been received at the time it is
delivered to the applicable address noted below either to the individual
designated below or to an individual at such address having apparent authority
to accept deliveries on behalf of the addressee. Notice of change of address
shall also be governed by this section. Notices and other communications shall
be addressed as follows:
a) if to the Employee:
with a copy to:
if to the Corporation:
TLC The Laser Center Inc.
5600 Explorer Drive Suite 301
Mississauga, Ontario
L4W 4Y2
Attention: Chief Executive Officer
Telecopier number: (905) 602-2025
with a copy to:
Howard J. Gourwitz, Esquire
2000 Town Center
Suite 1400
Southfield, Michigan 48075-1147
Telecopier number: (248) 353-3981
18. Headings
The inclusion of headings in this Agreement is for convenience of
reference only and shall not affect the construction or interpretation hereof.
19. Invalidity of Provisions
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Each of the provisions contained in this Agreement is distinct and
severable and a declaration of invalidity or unenforceability of any such
provision by a court of competent jurisdiction shall not affect the validity or
enforceability of any other provision hereof.
20. Entire Agreement
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter of this Agreement. This Agreement supersedes
and replaces all prior agreements, if any, written or oral, with respect to the
Employee's employment by the Corporation and any rights which the Employee may
have by reason of any such prior agreement or by reason of the Employee's prior
employment, if any, by the Corporation. There are no warranties, representations
or agreements between the parties in connection with the subject matter of this
Agreement except as specifically set forth or referred to in this Agreement.
21. Waiver, Amendment
Except as expressly provided in this Agreement, no amendment or waiver of
this Agreement shall be binding unless executed in writing by the party to be
bound thereby. No waiver of any provision of this Agreement shall constitute a
waiver of any other provision nor shall any waiver of any provision of this
Agreement constitute a continuing waiver unless otherwise expressly provided.
22. Currency
Except as expressly provided in this Agreement, all amounts in this
Agreement are stated and shall be paid in U.S. currency.
23. Governing Law
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This Agreement shall be governed by and construed in accordance with the
laws of the State of Michigan, without regard to its conflict of laws rules,
which are deemed inapplicable herein. The parties hereto each consent to the
personal jurisdiction of the federal and state courts of the State of Michigan.
24. Counterparts
This Agreement may be signed in counterparts, and each of such
counterparts shall constitute an original document, and such counterparts, taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties have executed this Agreement.
/s/ Thomas G. O'Hare
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Thomas G. O'Hare
TLC THE LASER CENTER INC.
By: /s/ Elias Vamvakas
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Elias Vamvakas
Chief Executive Officer
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SCHEDULE 2.1
Job Description
TITLE: President & Chief Operating Officer
REPORTS TO: Chief Executive Officer
FUNCTIONAL REPORTS: VP Operations
VP Human Resources
VP Information Systems
VP Marketing
VP Clinical Affairs
VP Licensing/Acquisitions
Chief Financial Officer (also reports to C.E.O.)
General Counsel (also reports to C.E.O.)
OVERALL REMIT
To oversee all daily operational aspects of the organization to ensure the
achievement of budgeted levels of profitability and attainment of strategic
growth to ensure shareholder value.
KEY DUTIES/RESPONSIBILITIES
The President and COO is responsible for:
o Full profit and loss for the Company which includes overseeing functional
areas such as marketing, operations, human resources, information systems,
clinical affairs, finance and development. The need to realize cost
efficiencies in driving the operation of the business. Improve performance
of business and enhance the share price that the Company currently enjoys.
o Work with the C.E.O. in the development of, and then lead the
implementation of, an effective, successful, strategic and tactical plan
to ensure the long-term success of the Company.
o Increase the level of quality service and patient care within all
locations.
o Ensure that technology both within the existing infrastructure and from
the clinical perspective is state-of-the art, to enhance the service
provided.
o Develop and continue to implement performance management criteria and
systems, succession planning, recruitment and training and development
within the organization and continue to reinforce positive organizational
values and culture.
o Working with others (particularly the VP, Marketing) in creating greater
brand awareness.
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o Regularly update and meet directly with the CEO and the Board on the
operational strengths and potential areas of concern within the
organization and the business.
o Ensure consistency of policies across the organization.
o Ensure the effective integration and assimilation of newly-acquired
companies.
o Assist the CEO to develop strategic plans and relationships with key
partners to ensure that the business continues to grow successfully.
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SCHEDULE 5.2
Bonus Remuneration
Performance Bonus Remuneration
In respect of each Year of Employment during the Employment Period, the
Executive shall be entitled to receive a maximum of fifty (50%) percent of his
salary as bonus remuneration based upon performance criteria agreed upon by the
Executive and the Corporation's Compensation Committee, as approved by the
Corporation's Board of Directors. Each performance bonus earned by the Executive
shall be paid within thirty (30) days after final calculation.
For the first Year of Employment, the Executive will be entitled to the maximum
performance bonus remuneration if he has satisfactorily completed substantially
all of the following items:
1. A complete review of all management personnel and made appropriate
recommendations;
2. A complete review of the current organizational structure and made
appropriate recommendations;
3. The development and implementation of an effective, successful
strategic and tactical plan with measurable milestones and time lines to ensure
the long-term success of the Corporation;
4. Development and implementation of performance management criteria and
systems with appropriate tracking mechanisms;
5. Review the operational cost structure of the Corporation and make
appropriate recommendations;
6. Develop key performance indicators;
7. Establish effective market and brand positioning;
8. Create as needed cross-functional "hot teams" to address short-term
urgent issues; and
9. Influence changes in the culture, organization and management of the
Corporation so that the Corporation will be:
a. Employee centered;
b. Patient focused;
c. Collaborative and consensual;
d. Based on a service profit model;
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e. A servant leadership management group;
For the first Year of Employment, the Corporation's Compensation Committee shall
make a recommendation to the Corporation's Board of Directors as to the
appropriate percentage of performance bonus remuneration to which the Executive
shall be entitled. The Corporation's Board of Directors shall make the final
determination as to the amount of performance bonus remuneration to be paid to
the Executive.
The appropriate performance criteria for each successive Year of Employment will
be quantitative (i.e. based upon same center procedures and/or productivity on a
comparable basis, improvement in the areas of EBITDA, EPS, stock price, etc.,
quality of service and patient and employee satisfaction measurements) and will
be finalized and reduced to writing as an amendment to this Agreement by the
Executive and the Corporation's Compensation Committee, as approved by the
Corporation's Board of Directors, within the sixty (60) day period prior to the
start of each successive Year of Employment.
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TLC LASER EYE CENTERS INC.
SCHEDULE 5.4
Benefits
o Standard TLC Benefits
o U.S. health insurance benefits for the Employee and his dependents
o Reimbursement for personal LTD coverage to a maximum income replacement
coverage of $195,000 per annum
o $20,000 per year for a split dollar life insurance policy
o $700 per month car allowance