Exhibit 10.18
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 31 day of December 2004 between TLC Vision
Corporation, a New Brunswick corporation (the "Corporation"), and Brian L.
Andrew, who resides at 15788 Summer Ridge Dr., Chesterfield, MO 63017 (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 set forth in Section 5001 of the
Delaware Code 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 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;
such percentage being determined on a undiluted basis without regard
to options and warrants then outstanding and unexercised;
1.1.6.2. the Corporation amalgamates with one or more corporations
other than a Subsidiary or Affiliate;
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 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 within six months of
the date that such arrangement is entered into;
95
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 sections 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 but not limited to trade
secrets, customer lists, projections, business plans) and confidential
facts relating to the business or affairs of the Corporation or any of its
Affiliates or Subsidiaries which is treated as confidential or proprietary;
1.1.8. "DISABILITY"
1.8.1.1. Employee shall be deemed permanently disabled if (a) Employee
is unable to provide the Corporation with at least thirty (30) hours
per week of normal effective work time during a continuous six (6)
month period and (b) if at the expiration of said six (6) month
period, insofar as can be reasonably foreseen, Employee will
thereafter be unable to give at least thirty (30) hours per week of
normal effective working time.
1.8.1.2. Until the expiration of the six (6) month period of
disability, Employee shall be entitled to received his regularly
established salary and bonus, less any monthly disability income
insurance payments.
1.8.1.3. In the event the parties hereto are unable to agree on the
existence of a disability or the date on which the aforesaid six (6)
month period of disability began, the Corporation and Employee shall
each designate a physician and the two physicians so designated shall
then select a third physician, which third physician shall then
determine whether a permanent disability exists within the meaning of
this Agreement and when the disability commenced if it does exist. The
determination of the said third physician shall bind the parties
hereto. For convenience of determining the rights of the parties under
this provision, a permanent disability shall be deemed to begin on the
first day of the month which immediately follows the date on which the
disability actually occurred, or is judged by the aforesaid third
physician to have occurred. If the said third physician determines
that Employee is not capable of performing the services required of
him hereunder, the Corporation shall have the right to require
Employee to submit to additional periodic examinations (not to exceed
one per month), at the Corporation's expense, by that physician for so
long as Employee purports to be disabled.
1.8.1.4. The foregoing to the contrary notwithstanding, in the event
the Corporation terminates the employment of Employee due to the
disability of Employee and if, after such termination and prior to the
normal termination date of this Agreement (or any extension or renewal
hereof) Employee is judged by the aforesaid third physician to be able
to return to his normal duties, then the Corporation shall hire
Employee as a consultant to the Corporation for the balance of the
term of this Agreement (or any extension or renewal hereof), at
Employee's salary as of the date of termination and subject to all
other terms and conditions of this Agreement.
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.a reduction of more than ten percent by the Corporation in
the Employee's then current Salary (set forth in Section 5.1)
1.1.10.2. the taking of any action by the Corporation which would
materially and 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 unless such
action by the Corporation affects all employees or reduces or deprives
all or a majority of the Corporation's employees of benefits
previously enjoyed.
1.1.10.3. the taking of any action by the Corporation which would
materially and adversely affect Employee's duties under this
Agreement.
96
1.1.10.4. The Corporation relocates Employee's principal office
outside the Greater St. Louis, Missouri area, which shall be defined
as St. Louis, Jefferson, St. Charles and Franklin counties in Missouri
and St. Clair and Madison counties in Illinois.
1.1.10.5. In the event of a breach or a claimed breach of this
Agreement by the Corporation under this section 1.1.10, Employee shall
give notice to the Corporation of any such claimed breach and the
Corporation shall have thirty (30) days from the date of receipt of
such notice to cure any such claimed breach.
1.1.11. "JUST CAUSE" shall mean that the Employee has been convicted of any
crime involving larceny, embezzlement, conversion or any other act
involving the misappropriation of Corporation funds in the course of his
employment;
1.1.12. "PERSON" means any individual, partnership, limited partnership,
joint venture, syndicate, sole proprietorship, limited liability company,
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;
1.1.15 "SUBSIDIARIES" has the meaning attributed to such term by Section
5001 of the Delaware Code as the same may be amended from time to time and
any successor legislation thereto;
1.1.16. "YEAR OF EMPLOYMENT" means any 12 month period commencing on
Effective Date (defined herein) 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 V.P. Secretary and General Counsel. In such
position, the Employee shall perform and fulfill such duties and
responsibilities as the Corporation may designate from time to time. The
Employee shall report to the Chief Executive Officer of the Corporation or such
other person or persons as designated by the Board of Directors from time to
time. Employee shall perform his duties hereunder in the Greater St. Louis
metropolitan area or at such other location or locations as are mutually agreed
between Employee and the Company.
3. PERFORMANCE OF DUTIES
During the Employee's employment, 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.
4. EMPLOYMENT PERIOD
Subject to the terms and conditions hereinafter provided, the term of the
Executive's employment shall commence on February 1, 2005 (the "Effective
Date"). Upon the Effective Date, the Executive's employment shall continue for a
term of one year unless and until sooner terminated under this Agreement
("Initial Term"). After the Initial Term, this Agreement shall continue for
successive one-year terms (each year term referred to as an "Extension Term")
unless either party gives written notice to the other party of its intention to
terminate this Agreement at least six (6) months prior to the end of the then
current term.
5. REMUNERATION
5.1. SALARY. The Corporation shall pay the Employee a base salary minus
applicable deductions and withholdings, for each Year of Employment of this
Agreement calculated at the rate of Two Hundred Ten Thousand Dollars
($210,000) per annum ("Salary"), payable in equal installments according to
the Corporation's regular payroll practices. Subsequent to the initial year
of employment under this Agreement, Employee's salary may be increased, but
shall not be reduced from the base amount paid to Employee during the
previous year.
5.2 BONUS REMUNERATION. The Employee is eligible to receive a bonus equal
to a maximum amount of 50% of the Employee's Salary, less applicable
deductions and withholdings. The payment of any bonus will be based on
Employee's performance within a specific area of responsibility and/or the
Corporation achieving its financial objectives for the fiscal
97
year; the amount of any such bonus and whether any bonus is earned shall be
determined by the Corporation in its sole discretion. Any bonus earned
shall be paid within sixty (60) days after the end of the Corporation's
fiscal year.
5.5. STOCK OPTIONS. The Employee shall receive 40,000 stock options.
5.6. BENEFITS. The Company shall provide to the Employee, in addition to
Salary and stock options, if any, the benefits (the "Benefits"') described
in the Company's Employee Handbook, such Benefits to be provided in
accordance with and subject to the terms and conditions of the Handbook as
such is amended from time to time. At a minimum, the Company will provide,
at the Company's expense, a medical and dental plan for Employee and his
spouse and dependents, as well as a life insurance policy and disability
plan to protect the Employee's income. Employee shall also be covered under
the Company's liability insurance policy for directors and officers under
the same terms and conditions that apply to other directors and officers of
the Company. In addition, the Company shall provide Employee, at the
Company's sole expense, with a policy of life insurance to be owned by the
Employee in a face amount of not less than $500,000.
5.5. PRO-RATA ENTITLEMENT IN THE EVENT OF TERMINATION. If the Employee's
employment is terminated pursuant to section 8 or if the Employee dies
during a Year of Employment, the Employee shall be entitled to receive that
portion of the Salary in respect of the Year of Employment representing the
number of days the Employee actually worked and only any bonus earned prior
to the termination of the Employee's employment.
6. EXPENSES
Subject to the terms of the Corporation's expense policy, as such may be
revised from time to time, 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
and receipts and such other supporting documentation as the Corporation may
reasonably require.
7. VACATION
The Employee shall be entitled during each Year of Employment to vacation
with pay equal to the standard award offered to all employees plus one week
(three weeks in the initial year of this Agreement); Employee's vacation
shall accrue at the equal rate each month (1.250 days per month in the
initial year of the Agreement) in accordance with the Corporation's policy.
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
President (i) no more than two weeks of vacation shall be taken
consecutively, and (ii) no more than five days of the vacation entitlement
earned in any Year of Employment can be carried forward to a subsequent
Year of Employment. Notwithstanding the foregoing, in the event that the
Employee's employment is terminated pursuant to this Agreement, 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 be terminated at any time:
8.1.1 by the Corporation without prior notice and without obligation
to the Employee (i) for reasons of Just Cause; or (iii) Disability of
Employee;
8.1.2. by the Corporation for any reason other than Just Cause,
Disability of Employee or as set forth in Section 4.0;
8.1.3. by the Employee on one month written notice to the Corporation;
or
8.1.4. by the Corporation as set forth in Section 4.0.
Notwithstanding the terms herein, the Employee's employment shall be
automatically terminated, without further obligation to the Employee or his
heirs, 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, the day the
Employee is deemed, under section 17, to have received
98
notice from the Corporation of such termination;
8.2.2. in the case of termination under section 8.1.2, on the date of
the event giving rise to the termination;
8.2.3 in the case of termination under section 8.1.3, on the date one
month after notice to the Corporation, provided the Corporation
utilizes Employee's services during this one month after notice;
8.2.4. in the case of termination under section 8.1.4, on the date
before the next anniversary of the Effective Date, provided the
Employee provides services in accordance with this Agreement from the
date of termination notice up to the date of termination;
8.2.5. in the event of the death of the Employee, on the date of his
death.
9. RIGHTS OF EMPLOYEE ON TERMINATION AND PAYMENT
Where the Employee's employment under this Agreement has been terminated by
the Corporation under sections 8.1.2, the Employee shall be entitled, upon
receipt by the Corporation of a waiver and release in a form acceptable to the
Corporation, to receive from the Corporation, in addition to accrued but unpaid
Salary, if any, a payment equal to twelve months Salary, less any amounts owing
by the Employee to the Corporation for any reason and applicable deductions and
withholdings, payable in one lump sum.
Except as provided above in this section, 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 FOR GOOD REASON. If at any time during this
Agreement and within 12 months following a Change of Control, the Employee's
employment is terminated by the Employee as a result of the Corporation taking
actions which would materially and adversely affect Employee's duties under this
Agreement, the Employee shall be entitled, upon receipt by the Corporation of a
waiver and release in a form acceptable to the Corporation, to receive from the
Corporation, a payment equal to twelve months Salary, less any amounts owing by
the Employee to the Corporation for any reason and applicable deductions and
withholdings, payable in twelve (12) equal monthly installments.
For greater certainty, this section 10.1 does not apply in the event of the
termination of the employment of the Employee as a result of death, Disability
or retirement of the Employee or by the Corporation for Just Cause or pursuant
to Section 4.0, or by the Employee without Good Reason.
10.2 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 Corporation
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 10.2
shall be as reasonably determined by the Compensation Committee of the Board of
Directors of the Corporation.
11. 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.
12. NON-COMPETITION
The Employee shall not, either during his employment and for a period of
one year following the termination of Employee's employment, within the United
States of America or Canada, directly or indirectly, in any manner whatsoever
including, without
99
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 related to refractive laser vision
corrective surgery, cataract surgery or ophthalmic ambulatory surgery
centers or any business conducted by the Corporation;
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 of refractive laser
corrective surgery, cataract surgery or ophthalmic ambulatory surgery
centers or carries on any business conducted by the Corporation; 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, cataract
surgery or ophthalmic ambulatory surgery centers or which competes or
competed directly or indirectly with the Corporation or any of its
Affiliates or Subsidiaries, during the Employee's employment 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 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 Affiliates or
Subsidiaries.
13. NO SOLICITATION OF PATIENTS
The Employee shall not, either during his employment or for a period of one
year thereafter ("Restricted Period"), directly or indirectly, contact or
solicit any customers or patients of the Corporation or any of its Affiliates or
Subsidiaries for the purpose of selling to those patients any products or
services which are the same as or substantially similar to, or in any way
competitive with, the refractive laser corrective surgery, cataract surgery or
ophthalmic ambulatory surgery center products or services provided by the
Corporation or any of its Affiliates or Subsidiaries during Employee's
employment or at the end thereof, as the case may be. For the purpose of this
section, a designated patient means a Person who was a patient of the
Corporation or of any of its Subsidiaries during some part of Employee's
employment.
14. NO SOLICITATION OF EMPLOYEES
The Employee shall not, either during his employment or the Restricted
Period, directly or indirectly, employ or retain as an independent contractor
any employee of the Corporation or any of its Affiliates or 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 his employment or at any time
thereafter, directly or indirectly, use or disclose to any Person any
Confidential Information; provided, 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 by law or
legal process or is directly necessary in connection with any legal action
or proceeding initiated against Employee. In such event, Employee shall
notify the Corporation in writing of the disclosure to be made and afford
the Corporation the reasonable opportunity to seek a protective order or
take other reasonable steps to maintain the confidentiality of any such
material.
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
100
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 and any successor 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 or any successor
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 via certified or registered
mail return receipt requested, by facsimile with confirmation of receipt or via
national and reputable overnight delivery service, except that any notice of
termination by the either party shall be given by certified mail return receipt
requested. Any such notice shall be deemed to have been received on the day of
delivery. Notice of change of address shall also be governed by this section.
Notices and other communications shall be addressed as follows:
c) if to the Employee:
Brian L. Andrew
15788 Summer Ridge Dr.
Chesterfield, MO 63017
d) if to the Corporation:
TLC Vision Corporation
540 Maryville Centre Drive Suite 200
St. Louis, MO 63141
Attention: Chief Executive Officer
Telecopier number: (314) 434-7251
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
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 among the parties and any
Affiliates or Subsidiaries of the Corporation 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 or by reason of the Employee's prior services to the Corporation or
its Affiliates or Subsidiaries. There are no warranties, representations or
agreements among the parties and the Corporation's Affiliates and Subsidiaries
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
101
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
This Agreement shall be governed by and construed in accordance with the
laws of the State of Missouri, 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 Missouri.
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.
EMPLOYEE
/s/ Brian L. Andrew
----------------------------------------
Brian L. Andrew
TLC VISION CORORATION
By: /s/ James Wachtman
------------------------------------
James Wachtman,
Chief Executive Officer
102