Severance Agreement - TLC Laser Eye Centers Inc. and Tom O'Hare
[LETTERHEAD OF TLC LASER EYE CENTERS INC.]
Personal & Confidential
October 15, 2001
Tom O'Hare
c/o TLC Laser Eye Centers Inc.
5280 Solar Drive, Suite 300
Mississauga, Ontario L4W 5M8
CANADA
Re: TLC Laser Eye Centers Inc.
Dear Tom:
As you have discussed with the Board of Directors and Elias
Vamvakas, your services will no longer be needed by TLC Laser Eye Centers
effective the day after the intended merger by and between TLC Laser Eye Centers
Inc. ("TLC") and Laser Vision Centers, Inc. ("LVCI") is closed (the "Termination
Date").
In addition to this notice of termination, you will be given a lump
sum payment representing twenty-four (24) months' compensation. Your health and
dental benefits (excluding life insurance and short and long-term disability)
will also be continued, at company expense, until the earlier of twenty four
months following your Termination Date or the date that you commence alternate
employment whichever is sooner.
All of your options will vest effective the Termination Date. You
(or, if you die before exercise, your estate) will have until twenty-four (24)
months following the Termination Date to exercise these options. If you do not
exercise your options they will expire and will no longer be exercisable
effective the second anniversary of the Termination Date.
We have calculated the severance payment as $650,000 based upon your
current TLC bi-weekly salary of $12,500. Provided that you have executed the
attached release, this payment will be made to you within 10 days after the
closing of the intended merger between TLC and LVCI but not earlier than January
2, 2002.
You represent that you have complied with the terms and provisions
of a certain employment agreement by and between you and TLC dated July 31, 2000
and that you shall continue to comply and be bound by the Agreement.
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You also acknowledge and agree that you have read this offer,
understand the legal and binding nature of it, were advised to and had the
opportunity to consult with legal counsel prior to executing it, and are acting
voluntarily and of your own free will in executing it.
Please return a signed copy of the Release to Paul Frederick.
In the meantime, I wish to take this opportunity to thank you for
your professional services to TLC and wish you much success in your future
endeavours.
Yours sincerely,
TLC LASER EYE CENTERS INC.
/s/ Elias Vamvakas
Elias Vamvakas
Chairman and Chief Executive Officer
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CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
This is a Confidential Separation Agreement and General Release
(hereinafter "Agreement") between TLC Laser Eye Centers, Inc. (hereinafter
"TLC") and Mr. Thomas G. O'Hare, (hereinafter "you"). You should talk to an
attorney before you sign this Agreement because it affects your legal rights.
1. What You Are Receiving
You (or if you die before payment is made, your estate) will receive a
severance payment provided by TLC for a lump sum amount equal to $650,000
which represents twenty-four (24) months of your current base salary,
reduced by normal deductions, if any. You will also continue to be covered
under the company's health and dental plan at company expense for a period
up to the earlier of twenty four months from the date of your termination
or the date you accept employment with another employer. All of your
options will vest effective the date of your termination and you (or if
you die before the options are exercised, your estate) will have 24 months
following the date of your termination to exercise your options,
(collectively, the "Severance Benefits"). The lump sum payment will be
paid to you ten (10) business days after the closing of the intended
merger between TLC and Laser Vision Centers, Inc. ("LVCI") but not earlier
than January 2, 2002 and when TLC has received this signed Release. You
would not otherwise be due this payment or these benefits, and it is what
you are receiving for signing this agreement. The payment and benefits are
not wages.
You agree that all payments or benefits paid to you under this Agreement
or otherwise are subject to withholding from such payments or benefits in
accordance with applicable plan provisions, laws and regulations.
This agreement does not preclude your exercise of your rights to continued
health insurance coverage under COBRA or similar law, provided you make
the appropriate election and payments.
2. General Release
In exchange for the Severance Benefits, you agree to release and hereby do
release TLC, LVCI, their subsidiaries and affiliates, and their benefits
plans, from all claims, demands, actions or liabilities you may have
against TLC or LVCI of whatever kind including, but not limited to, those
that are related to your employment at TLC, the employment agreement dated
July 31, 2000 between you and TLC (the "Employment Agreement"), the
termination of that employment, your eligibility for other severance
payments or non-vested TLC benefits plans, or claims for attorneys' fees.
This part of the Agreement is hereinafter called the "General Release".
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You agree that the General Release covers TLC's and LVCI's agents,
directors, officers, employees, representatives, successors and assigns
(hereinafter "those associated with TLC").
You agree that you have voluntarily given this General Release on your own
behalf, and also on behalf of any heirs, agents, representatives,
successors, and assigns that you may have now or in the future.
You agree that this General Release covers, but is not limited to, claims
arising from the Age Discrimination in Employment Act, as amended, Title
VII of the Civil Rights Act of 1964, as amended, the Equal Pay Act, the
Americans with Disabilities Act, the Rehabilitation Act of 1973, and any
other federal, state or local law dealing with discrimination in
employment including, but not limited to, discrimination based on sex,
sexual orientation, race, national origin, religion, disability, veteran
status, or age. You also agree that this General Release covers claims
arising from the Family and Medical Leave Act of 1993 and any state or
local law dealing with leave time or wages and hours of work. You also
agree that this General Release covers, but is not limited to, claims
based on theories of contract or tort, whether based on common law or
otherwise. In addition, you agree to waive any right you have to pursue
any claim or grievance through any TLC internal channel.
This General Release covers both claims you know about and those you may
not know about that accrued by the time you execute this General Release.
In this regard, you agree to waive all rights that any state or local law
may provide with respect to a general release of unknown claims.
3. Covenant Not To Sue Or Recover From TLC
In exchange for the Severance Benefits, you promise never to file a
lawsuit asserting any claims covered by the General Release. If you file
any such lawsuit, you agree to pay for all costs, damages, expenses, and
attorneys' fees incurred by TLC or those associated with TLC in defending
against the lawsuit, and for all further costs and fees, including
attorneys' fees, incurred in connection with collection of this amount.
You also agree, if you file such a lawsuit, that TLC can immediately cease
any Severance Benefits not yet provided to you. You also agree, if you
file any such lawsuit, that you must "tender back", that is, give back
before filing a lawsuit, any of the Severance Benefits you have received.
You agree that a court cannot even consider any such lawsuit until you do
this. In that event, you agree that TLC can set-off any claim you make
against it by the amount of the Severance Benefits you have already
received. The provisions of this paragraph, however, do not apply to
lawsuits contending that this Agreement does not comply with the Older
Worker Benefit Protection Act.
If any government agency pursues a claim on your behalf against TLC, or on
behalf of a group of individuals of which you are part, you promise not to
seek or
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accept any damages arising from or relating to your employment at TLC or
the termination of that employment.
4. Employment Agreement
You agree and acknowledge that you will continue to be bound by sections
12 (Non-Competition), 13 (Non-Solicitation), 14 (Non-Solicitation of
Employees), 15 (Confidentiality) and 16 (Remedies) of the Employment
Agreement.
5. Confidentiality of the Terms and Conditions of this Agreement
The terms and conditions of this Agreement are confidential. You agree not
to disclose the terms of this Agreement to anyone except immediate family
members and your attorney and financial adviser. You further agree to
inform these people that the Agreement is confidential and must not be
disclosed to anyone else. You may disclose the terms of this Agreement if
compelled to do so by a court, but you agree to notify TLC immediately if
anyone seeks to compel your testimony in this regard, and to cooperate
with TLC if TLC decides to oppose such effort.
You agree that disclosure by you in violation of this Agreement would
cause so much injury to TLC that money alone could not fully compensate
TLC and that TLC is entitled to injunctive and equitable relief. You also
agree that TLC would be entitled to recover money from you if this
Agreement were violated.
6. Nondisparagement
TLC shall use its commercially reasonable best efforts to cause its
officers, directors and shareholders to refrain from making or publishing
any statement critical of you or otherwise disparage your reputation in
the business community (other than as may be required by applicable law or
judicial or administrative process), and you agree that you will not make
or publish any statement critical of TLC and those associated with TLC,
its affiliates, directors, executive officers, shareholders or employees
or otherwise disparage the reputation of TLC and those associated with TLC
or any such persons in the business community (other than as may be
required by applicable law or judicial or administrative process).
7. Return of Property
Before signing this Agreement, you will return all property, documents,
business records in any form, manuals, handbooks, or any other possessions
of TLC, both tangible and intangible, that are in your possession, custody
or control.
8. Time to Decide; Time to Revoke
You have up to twenty-one (21) calendar days to decide whether or not or
sign this Agreement. You agree, if you decide not to take all that time,
that your reasons for doing so are entirely personal and not due to any
pressure by TLC.
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You also may revoke this Agreement up to seven (7) calendar days after
signing it. For that revocation to be effective, you need to deliver
written notice to TLC by 5:00 p.m. on the seventh calendar day after you
sign this Agreement, at the following address: 5280 Solar Drive,
Mississauga, Ontario, L4W 5M8 Attn: Paul Frederick, Executive
Vice-President, Human Resources. You agree that, if you revoke this
Agreement, it will not be effective or enforceable and you will not
receive the Severance Benefits. TLC will provide the Severance Benefits
starting on the tenth calendar day after you sign the Agreement.
9. Advice to Counsel
You acknowledge that TLC has expressly advised you to seek the advice of
an attorney before executing this Agreement and that you have had adequate
time to do so. You acknowledge that the decision to sign this Agreement is
yours alone.
10. Nonadmission of Liability
TLC makes this Agreement to avoid the expense and disruption of
litigation. By making this Agreement, TLC does not admit that it has done
anything wrong.
11. Severability and Interpretation
Whenever possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable law. In
case any part of this Agreement shall be invalid, illegal, or otherwise
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
/s/ Thomas G. O'Hare October 17, 2001
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Thomas G. O'Hare Date
Subscribed to and sworn before me
this 17th day of October, 2001
/s/ John Brege-Blanchard
-----------------------------------
Notary Public
County of Fairfax
State of VA
My commission expires: October 31, 2003
/s/ Elias Vamvakas October 15, 2001
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For TLC Laser Eye Centers Inc. Date
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[LETTERHEAD OF TLC LASER EYE CENTERS INC.]
December 4, 2001
Mr. Thomas O'Hare
3096 Windsong Drive
Oakton, VA 22124
Re: Confidential Separation Agreement and General Release Dated 10/15/01
Dear Tom,
You are in receipt of and have executed the above referenced
separation agreement from TLC. A notarized copy of the executed agreement,
signed by yourself and Elias Vamvakas has been returned to Paul Frederick at
TLC. The agreement provides that your separation and the terms and conditions of
the agreement, including the severance payment, are contingent on the closing of
the previously announced merger transaction with Laser Vision Centers, Inc.
("LVCI").
Because of mutually beneficial reasons you and TLC have agreed to
amend this agreement to eliminate the condition of the "Termination Date"
(transaction closing date) for it to be effective and have agreed that your last
day of work will be Friday, December 7, 2001. You will however continue to be
paid as a regular employee through Friday, December 28, 2001 at which time the
terms of the Separation Agreement will go into effect. It is also further agreed
that all other terms and conditions of the original agreement, dated October 15,
2001 remain in full force and effect and are not altered, changed, affected or
amended in any way by this agreement.
If you are in agreement with this amendment please so indicate by
signing a copy of this letter below and return it to Paul Frederick at TLC. This
amendment will then become a part of the original agreement.
Yours truly,
/s/ Elias Vamvakas
Elias Vamvakas
Chairman and CEO
TLC Laser Eye Centers Inc.
Agreed to this 5th day of December, 2001
By: /s/ Thomas O'Hare Witness: /s/ Mary O'Hare
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Thomas O'Hare