{"id":39038,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-continued-employment-lca-vision-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-continued-employment-lca-vision-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-continued-employment-lca-vision-inc.html","title":{"rendered":"Employment Agreement – Continued Employment – LCA-Vision, Inc."},"content":{"rendered":"

AGREEMENT<\/strong><\/p>\n

\n

This Agreement (this “Agreement”) is made and entered into on the
\n8th<\/sup> day of September, 2009 by and between LCA -Vision Inc., a Delaware
\ncorporation (the “Corporation”), and Rhonda Sebastian (the “Employee”).<\/p>\n<\/p>\n

RECITALS<\/u>:<\/p>\n

\n<\/p>\n

A. The Employee is currently employed by the Corporation.<\/p>\n<\/p>\n

B. The Employee desires to continue to be employed by the Corporation, and
\nthe Corporation desires to continue to employ the Employee, on the terms
\noutlined in this Agreement.<\/p>\n<\/p>\n

C. This Agreement supersedes any previous agreement between the Employee and
\nthe Corporation with respect to the matters covered herein.<\/p>\n<\/p>\n

NOW, THEREFORE, in consideration of the recitals and for other good and
\nvaluable consideration, the receipt and sufficiency of which are hereby
\nacknowledged, the Corporation and the Employee agree as follows:<\/p>\n<\/p>\n

1. Position and Term<\/u>. Effective as of the date of this Agreement, the
\nCorporation continues to employ the Employee, and the Employee accepts continued
\nemployment with the Corporation, as Senior Vice President of Human Resources of
\nthe Corporation. Employee will report directly to the Chief Executive Officer
\n(CEO) and will be a member of the Executive Management team. The term of the
\nEmployee’s employment is “at will” meaning that either the Employee or the
\nCorporation can end the Employee’s employment at any time and for any reason.
\nThe initial term of this Agreement commences on the date of this Agreement and
\nterminates on December 31, 2009. The term of this Agreement will be renewed
\nautomatically from year to year thereafter, unless either the Employee or the
\nCorporation notifies the other at least ninety (90) days prior to December 31,
\n2009 or December 31st of any subsequent year of its or her desire to terminate
\nthis Agreement as of the December 31st immediately following the service of
\nnotice. While she is employed by the Corporation, the Employee shall devote
\nsubstantially all of her business time, ability, and attention for the benefit
\nof the business of the Corporation. Nothing in this Section 1, however, will
\nprevent the Employee from engaging in additional activities in connection with
\npersonal investments, charitable, civic, educational, professional, industry, or
\ncommunity affairs that are not inconsistent with the Employee’s duties under
\nthis Agreement. The Employee’s duties shall include those as are customary for
\nsomeone of her position at comparable corporations.<\/p>\n<\/p>\n

2. Best Efforts<\/u>. The Employee agrees on a full-time basis to perform
\nfaithfully, industriously, and to the best of her ability, experience, and
\ntalents, all of the duties that may be required by the terms of this Agreement.\n<\/p>\n<\/p>\n

\n

3. Compensation and Benefits<\/u>. The Corporation shall pay the Employee a
\nbase salary of One Hundred Ninety Thousand Dollars ($190,000) per year, which
\nshall be paid in accordance with the Corporation’s standard salary schedule from
\ntime to time in effect, but no less frequently than in equal monthly
\ninstallments. The base salary will be reviewed by the Compensation Committee of
\nthe Board of Directors not less frequently than annually, and may be adjusted
\nupward (but not downward), in the discretion of the Compensation Committee of
\nthe Board of Directors. In addition, the Employee shall be eligible for annual
\ncash and equity incentive bonuses as may be awarded to her in the discretion of
\nthe Compensation Committee or the Board of Directors. Your bonuses for 2009 will
\nbe determined as set forth in your offer letter of June 1, 2009. The Employee
\nshall be entitled to participate in such other group employee benefits,
\nincluding but not limited to the benefits listed on Exhibit A of this Agreement.
\nAll reasonable and necessary expenses incurred by Employee in the course of the
\nperformance of Employee’s duties to the Corporation shall be reimbursable in
\naccordance with the Corporation’s then current travel and expense policies. In
\nconnection with her employment by the Corporation, the Employee shall be based
\nat the principal executive offices of the Corporation in the Cincinnati, Ohio
\narea, except for travel reasonably required for Corporation business. If elected
\nas a Director of the Corporation, the Employee shall serve in such capacity
\nwithout further compensation.<\/p>\n<\/p>\n

4. Confidentiality, Non-competition, Inventions, Etc.<\/u> The Employee
\nrecognizes that the Corporation has and will have information regarding
\ninventions, products, product designs, processes, technical matters, trade
\nsecrets, copyrights, customer lists, prices, costs, discounts, business and
\nfinancial affairs, future plans, and other vital items of information which are
\nconfidential, valuable, special, and unique assets of the Corporation In order
\nto protect these assets, and in consideration of Employee’s continued employment
\nand the agreement of the Corporation to enter into this Agreement, the Employee
\nagrees to execute the Confidentiality, Inventions and Noncompetition Agreement
\nattached to this Agreement as Exhibit B, which shall be considered as part of
\nthis Agreement.<\/p>\n<\/p>\n

5. Breach<\/u>. In the event of a breach by the Employee of any of the
\nprovisions of this Agreement during or after the term hereof, the Corporation
\nshall be entitled to an injunction (without the requirement of bond) restraining
\nthe Employee from violating such provisions. Nothing herein shall be construed
\nas prohibiting the Corporation from pursuing other remedies, including a claim
\nfor losses and damages.<\/p>\n<\/p>\n

2<\/p>\n

\n

\n

6. Termination<\/u>. (a) The Employee may terminate this Agreement for Good
\nReason. Good Reason means a separation from service because of (A) the
\nCorporation having breached any material provision of this Agreement, (B) a
\nmaterial diminution in the Employee’s authority, duties, or responsibilities;
\n(C) a change in the geographic location of the Employee’s primary work location
\nthat is thirty-five (35) miles or more from the Corporation’s headquarters in
\nCincinnati, Ohio; or (D) a successor or assign (whether direct or indirect, by
\npurchase, merger, consolidation or otherwise) to all or substantially all of the
\nbusiness and\/or assets of the Corporation fails to assume all of the
\nCorporation’s obligations under this Agreement. Besides satisfying (A) – (D), in
\norder to be considered Good Reason, the Employee must provide written notice to
\nthe Corporation of the existence of the breach of the material provision within
\n90 days of the initial existence of the breach, and within 30 days after receipt
\nof such notice, the Corporation must fail to cure such breach. The Corporation
\nmay terminate the employment of the Employee if (i) the Employee has breached
\nany material provision of this Agreement and within 30 days after notice thereof
\nfrom the Corporation, the Employee fails to cure such breach; or (ii) the
\nEmployee at any time refuses or fails to perform, or misperforms, any of her
\nobligations under or in connection with this Agreement in a manner of material
\nimportance to the Corporation and within 30 days after notice thereof from the
\nCorporation, the Employee fails to cure such action or inaction; or (iii) a
\ncourt determines that the Employee committed a fraud or criminal act in
\nconnection with her employment that materially affects the Corporation. If the
\nEmployee’s employment hereunder is terminated by the Corporation for any reason
\nother than pursuant to clauses (i) through (iii) above, or by the Employee for
\nGood Reason or due to death or disability (as defined in the Company’s long-term
\ndisability policy), or if the Corporation gives notice of non-renewal pursuant
\nto Section 1 above, the Employee shall be entitled to the following severance
\nand benefits under this Agreement: (i) continuation of the Employee’s base
\nsalary, $190,000, including any subsequent upward adjustments in the Employee’s
\nbase salary, payable in 12 equal monthly installments commencing on the next
\npayroll ending date after the Employee’s date of termination, (ii) continuation
\nof health, dental and vision benefits for the 12-month period following her date
\nof termination with premiums charged to the Employee at active employee rates,
\n(iii) in the case of any such termination occurring after the sixth complete
\nmonth of the fiscal year of termination, a bonus under the Executive Cash Bonus
\nPlan for the year of termination in an amount based on actual performance for
\nthe year (provided, all subjective individual performance measures will be
\ndeemed satisfied), pro-rated for the fraction of the year during which the
\nEmployee was employed, and payable when annual bonuses are paid to other senior
\nexecutives, (iv) all of the Employee’s Options and Time-Based Restricted Share
\nAwards will vest in full, (v) the Employee will be issued shares under
\noutstanding Performance-Based Restricted Share Awards based on the actual level
\nof achievement of the performance criteria for the applicable performance period
\napplicable to the Awards, pro-rated to reflect the number of days from the start
\nof the applicable performance period to the date the Employee ceases to be
\nemployed by the Corporation divided by the total number of days in the
\napplicable performance period, any such shares to be issued to the Employee at
\nthe same time as shares are issued to other senior executive officers, and (vi)
\nthe following amounts and benefits (“Accrued Obligations”): (a) the Employee’s
\naccrued and unpaid base salary and accrued and unused vacation through the date
\nof termination, payable by the next payroll ending date after such termination,
\n(b) the Employee’s unreimbursed business expenses incurred through die date of
\ntermination and payable in accordance with such policies and procedures as are
\napplicable to senior executives of the Corporation, (c) any unpaid annual bonus
\nearned for the prior fiscal year, payable when annual bonuses are paid to other
\nsenior executives but in no event beyond the last day on which such payment
\nwould qualify as a short-tern deferral under Treasury Regulation \u00a7 1.409A-1
\n(b)(4), and (d) all accrued, vested and unpaid benefits under all employee
\nbenefit plans in which the Employee is a participant immediately prior to her
\ntermination, payable in accordance with the tears of such plans. The Employee
\nwill not be obligated to mitigate her severance and other benefits provided
\nunder this Agreement, and no amounts payable to the Employee hereunder will be
\nreduced as a result of subsequent employment or self-employment, except that the
\nEmployee’s health benefits continuation as provided at clause (ii) above will be
\nreduced by any comparable coverage from a subsequent employer. In the event of a
\nChange in Control (as defined under the Corporation’s 2006 Stock Incentive Plan)
\nall of the Employee’s Options and Time-Based Restricted Share Awards will vest
\nin full and all of the Employee’s Performance-Based Restricted Share Awards will
\nbe treated as earned at target (if the performance period is not then completed)
\nand the shares subject thereto will be issued to the Employee within 10 days of
\nsuch Change in Control.<\/p>\n<\/p>\n

3<\/p>\n

\n

\n

(b) Notwithstanding the provisions of Subsection (a), to the extent the
\namount of severance payable and other benefits provided under the immediately
\npreceding paragraph does not exceed the Separation Pay Exemption Amount (defined
\nbelow), such severance and other benefits shall be exempt from Section 409A of
\nthe Internal Revenue Code (“Section 409A”) and shall be paid or provided in
\naccordance with the provisions of Subsection (a). The amount of the severance
\npayable and other benefits provided under Subsection (a) that is in excess of
\nthe Separation Pay Exemption Amount shall be subject to the requirements of
\nSection 409A and shall be paid in strict accordance with the provisions of
\nSubsection (a), unless the Employee is a specified employee (as defined in
\naccordance with Treas. Reg. \u00a7 1.409A-1(j) and such rules as many be established
\nby the Corporation (including its delegate) from time to time) on her date of
\ntermination in which case the excess amount shall be paid as follows: (w) no
\nportion of the excess amount may be paid, or commence to be paid, earlier than 6
\nmonths after the date the Employee terminates employment, (x) in the case of a
\npayment that would have otherwise been paid during such 6-month period, the
\npayment shall be made on the first day of the seventh month following the date
\nthe Employee terminates employment, (y) in the case of installment payments that
\nwould have otherwise been paid during such 6 month period, such installment
\npayments shall be accumulated and paid on the first day of the seventh month
\nfollowing the date the Employee terminates employment and the remaining
\ninstallments shall be paid in strict accordance with the provisions of
\nSubsection (a), and (z) the determination of the amount of severance payable and
\nother benefits provided under this Agreement that may considered excess amounts
\nshall be made in the following order (those that are listed first shall be
\nconsidered not to exceed the Separation Pay Exemption Amount to the maximum
\nextent possible): (I) benefits, then (II) any payments in cash that are to be
\npaid in installments, then (III) any payments in cash that are to be paid in a
\nlump sum, and (IV) any noncash payments. For purposes of this Subsection (b),
\nthe term “Separation Pay Exemption Amount” means an amount equal to two times
\nthe lesser of (x) the sum of the Employee’s annualized compensation based upon
\nthe annual rate of pay for services provided to the Company for the Employee’s
\ntaxable year preceding the taxable year in which the Employee separates from
\nservice (adjusted for any increase during that year that was expected to
\ncontinue indefinitely if the Employee had not separated from service); or (y)
\nthe maximum amount that may be taken into account under a qualified plan
\npursuant to Section 401(a)(17) of the Internal Revenue Code for the year in
\nwhich the Employee separates from service.<\/p>\n<\/p>\n

4<\/p>\n

\n

\n

(c) Notwithstanding anything in this Agreement to the contrary, if any of the
\npayment or payments or other benefit to the Employee (prior to any reduction
\nbelow) provided for in this Agreement, together with any other payment or
\npayments or other benefit which the Employee has the right to receive from the
\nCorporation or any corporation which is a member of an “affiliated group” as
\ndefined in Section 1504(a) of the Internal Revenue Code of 1986, as amended
\n(“Code”), without regard to Section 1504(b) of the Code, of which the
\nCorporation is a member (the “Payments”) would constitute a “parachute payment”
\n(as defined in Section 280G(b)(2) of the Code), and if the Safe Harbor Amount
\n(defined below) is greater than the Taxed Amount (defined below), then the total
\namount of such Payments shall be reduced to the Safe Harbor Amount. The “Safe
\nHarbor Amount” is the largest portion of the Payments that would result in no
\nportion of the Payments being subject to the excise tax set forth at Section
\n4999 of the Code (“Excise Tax”). The “Taxed Amount” is the total amount of the
\nPayments (prior to any reduction, above) notwithstanding that all or some
\nportion of the Payments may be subject to the Excise Tax. Solely for the purpose
\nof comparing which of the Safe Harbor Amount and the Taxed Amount is greater,
\nthe determination of each such amount shall be made on an after-tax basis,
\ntaking into account all applicable federal, state and local employment taxes,
\nincome taxes, and the Excise Tax (all of which shall be computed at the highest
\napplicable marginal rate). If a reduction of the Payments to the Safe Harbor
\nAmount is necessary, then the reduction shall occur in the following order
\nunless the Employee elects in writing a different order (provided, however, that
\nsuch election shall be subject to approval of the Corporation if made on or
\nafter the date on which the event that triggers the Payments occurs): (i)
\nreduction of cash payments; then (ii) cancellation of accelerated vesting of
\nstock or stock option awards; and then (iii) reduction of the Employee’s
\nbenefits. In the event that acceleration of vesting of stock or stock option
\naward compensation is to be reduced. Such acceleration of vesting shall be
\ncancelled in the reverse order of the date of grant of the Employee’s stock
\nawards unless the Employee elects in writing a different order for cancellation.\n<\/p>\n<\/p>\n

7. Notices<\/u>. Any notice or communication required or permitted to be
\ngiven by any provision of this Agreement shall be deemed to have been
\nsufficiently given or served for all purposes to a party: (a) if delivered
\npersonally to such party; (b) if sent to such party (addressed to such party’s
\nfacsimile number which is set forth in this Agreement) by facsimile, with
\nreceipt confirmed by telephone; (c) if sent to such party (addressed to such
\nparty’s address which is set forth in this Agreement) by regularly scheduled
\novernight delivery carrier with delivery fees either prepaid or an arrangement,
\nsatisfactory with such carrier, made for the payment thereof; or (d) if sent to
\nsuch party (addressed to such party’s address which is set forth in this
\nAgreement) by registered or certified mail, postage and charges prepaid. Any
\nsuch notice shall be deemed to be given: (i) upon personal delivery, as provided
\nabove; (ii) upon telephonic confirmation of receipt of notice sent by facsimile,
\nas provided above; (iii) one (1) business day after delivery to a regularly
\nscheduled overnight delivery carrier, addressed and sent as provided above; or
\n(iv) three (3) business days after the date on which the same was deposited in a
\nregularly maintained receptacle for the deposit of United States mail, addressed
\nand sent as provided above. The addresses of each of the parties are as follows:\n<\/p>\n<\/p>\n

5<\/p>\n

\n

\n

To the Corporation:<\/p>\n<\/p>\n

LCA-Vision, Inc.<\/p>\n<\/p>\n

7840 Montgomery Road<\/p>\n<\/p>\n

Cincinnati, OH 45236<\/p>\n<\/p>\n

Attention: Chief Executive Officer<\/p>\n<\/p>\n

Facsimile No.: (513) 792-5620<\/p>\n<\/p>\n

To the Employee:<\/p>\n<\/p>\n

Rhonda Sebastian<\/p>\n<\/p>\n

7723 Cooper Road<\/p>\n<\/p>\n

Cincinnati, OH 45242<\/p>\n<\/p>\n

Any party may change such party’s address or facsimile number for purposes of
\nthis Agreement by notice given in accordance herewith.<\/p>\n<\/p>\n

8. Entire<\/u> Agreement<\/u>. This Agreement contains the entire
\nagreement of the parties with respect to the subject matter hereof, and there
\nare no other promises or conditions between the parties in any other agreement,
\nwhether oral or written, relating to such subject matter. This Agreement
\nsupersedes any prior written or oral agreements between the parties with respect
\nto the subject matter hereof.<\/p>\n<\/p>\n

9. Amendment<\/u>. This Agreement may only be modified or amended if the
\namendment is made in writing and is signed by both parties. Any amendments
\nhereto must be signed by the Chief Executive Officer on behalf of the
\nCorporation or at the direction of the Corporation’s Board of Directors to be
\neffective against the Corporation.<\/p>\n<\/p>\n

6<\/p>\n

\n

\n

10. Severability<\/u>. If any provision of this Agreement shall be held to
\nbe invalid or unenforceable for any reason, the remaining provisions shall
\ncontinue to be valid and enforceable. If a court finds that any provision of
\nthis Agreement is invalid or unenforceable, but that by limiting such provision
\nit would become valid or enforceable, then such provision shall be deemed to be
\nwritten, construed, and enforced as so limited.<\/p>\n<\/p>\n

11. Waiver<\/u>. The failure of either party to enforce any provision of
\nthis Agreement shall not be construed as a waiver or limitation of that party’s
\nright subsequently to enforce and compel strict compliance with every provision
\nof this Agreement.<\/p>\n<\/p>\n

12. Applicable Law<\/u>. This Agreement shall be governed by the laws of
\nthe State of Ohio, except the choice of law provisions thereof.<\/p>\n<\/p>\n

13. Arbitration Agreement<\/u>. Any and all claims with respect to this
\nAgreement shall be settled by arbitration administered by the American
\nArbitration Association (AAA) in Cincinnati, Ohio under the AAA’s National Rules
\nfor the Resolution of Employment Disputes, and judgment upon the award rendered
\nby the arbitrator may be entered in any court having jurisdiction thereof. In
\nany such arbitration proceeding, either party also may, without waiving any
\nremedy under this Agreement, seek from any court having jurisdiction any interim
\nor provisional relief that is necessary to protect the rights or property of
\nthat party pending the arbitrator’s determination of the merits of the
\ncontroversy. Nothing in this Agreement is intended to prohibit Employee from
\nfiling a claim or communicating with any governmental agency including the Equal
\nEmployment Opportunity Commission or Department of Labor.<\/p>\n<\/p>\n

14. Indemnification<\/u>. In accordance with the Corporation’s Bylaws, the
\nCorporation will indemnify and hold harmless, to the fullest extent permitted by
\napplicable law, the Employee if she is made or is threatened to be made a party
\nor is otherwise involved in any action, suit or proceeding, whether civil,
\ncriminal, administrative or investigative by reason of the fact that she is a
\ndirector or officer of the Corporation, against all liability or loss suffered
\n(including attorneys’ fees) reasonably incurred by Employee.<\/p>\n<\/p>\n

15. Binding Effect; Assignment<\/u>. This Agreement shall be binding upon
\nthe parties and their respective heirs, executors, administrators, successors,
\nand assigns; provided, however, that the Employee shall not assign any part of
\nher rights or duties under this Agreement without the prior written consent of
\nthe Corporation, which the Corporation may grant or withhold in its sole
\ndiscretion, and any such assignment by the Employee without the Corporation’s
\nprior written consent shall be void and of no force or effect. In the event of a
\nmerger, sale, transfer, consolidation, or reorganization involving the
\nCorporation, this Agreement shall continue in full force and effect and shall be
\nbinding upon, and inure to the benefit of, the Corporation’s successor.<\/p>\n<\/p>\n

7<\/p>\n

\n

\n

16. Exemption from, or Compliance with, Section 409A<\/u>. The payment of
\namounts and the provision of benefits under this Agreement are intended to be
\nexempt from, or compliant with, Section 409A of the Internal Revenue Code.
\nAccordingly, the payment of any amount under this Agreement subject to Section
\n409A shall be made in strict compliance with the provisions hereof, and no such
\namounts payable hereunder may be accelerated or deferred beyond the periods
\nprovided herein. This Agreement shall be administered and interpreted in a
\nmanner that is consistent with the foregoing intention.<\/p>\n<\/p>\n

IN WITNESS WHEREOF, the parties hereto have duly and validly entered into and
\nexecuted this Agreement as of the date first written above.<\/p>\n<\/p>\n\n\n\n\n\n\n\n\n
\n

LCA-Vision Inc.<\/p>\n<\/td>\n

\n

EMPLOYEE<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

By: \/s\/ Steven C. Straus<\/p>\n<\/td>\n

\n

\/s\/ Rhonda Sebastian<\/p>\n<\/td>\n<\/tr>\n

\n

Printed Name: Steven C. Straus<\/p>\n<\/td>\n

\n

Printed Name: Rhonda Sebastian<\/p>\n<\/td>\n<\/tr>\n

\n

Title: Chief Executive Officer<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

8<\/p>\n

\n

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