**Exhibit 10.1**

 

**EMPLOYMENT AGREEMENT**

 

This EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into asof April 1, 2005, by and between **MEDICORLTD.** (“MediCor” or the “Company”) and **MARC S. SPERBERG** (“Executive”).

 

A.            MediCor is engaged in the business ofcreation, production and distribution of medical devices and desires to retainan individual for the position of Executive Vice President and CorporateSecretary (“EVP/CS”) of the Company.

 

B.            Executive represents that he is wellqualified to perform the duties of EVP/CS, and will devote the necessary time,effort and energy to perform those duties.

 

C.            Based on these representations, theCompany desires to hire Executive as its EVP/CS.

 

NOW, THEREFORE, inconsideration of the above recitals and the respective agreements of Companyand Executive set forth below, the Company and Executive, intending to belegally bound, agree as follows:

 

**1.****             Employment.**  The Company shall employ Executive as its EVP/CS,and Executive shall accept such employment and perform the services hereindescribed for Company, upon the terms and conditions set forth in thisAgreement.

 

**2.****             Termof Employment.**  This Agreementshall commence as of the Effective Date of the fully executed Personnel Action Form shownin blank form as Exhibit A hereto. Unless terminated at an earlier date inaccordance with Section 5 below, the term of Executive’s employment withCompany (“Term of Employment”) shall commence on the date first set forth aboveand shall continue for a period initially ending on March 31, 2006 (“InitialTerm”). The Term of Employment shall automatically be renewed at the end of the12th month prior to the end of the Initial Term for an additional 12-monthperiod and shall be extended at the end of each succeeding month by an additionalmonth such that the Term of Employment shall extend each month until the end ofsucceeding 12th month (each such rolling 12-month period, a “SubsequentTerm”) unless either party provides written notice of their intention not torenew this Agreement to the other in advance of then applicable terminationdate of the Term of Employment.

 

**3.****             Positionsand Duties**.

 

a.             Employmentwith Company.  Executive shallperform for the Company the duties and responsibilities of an EVP/CS of acorporation and such other duties and responsibilities as the Company shallreasonably assign to Executive from time to time generally consistent withExecutive’s position as EVP/CS, as determined in the sole discretion of theCompany. Executive shall report to the Company’s Chairman.

 

b.             Placeof Employment.  Executive’s principalplace of employment shall be at the Company’s Executive Offices; provided,however, that Executive will be expected to engage in travel as Company mayreasonably request of Executive.

 

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**4.****             Compensation**.

 

a.             Salary.  The Company shall pay Executive ascompensation for his services a base salary at the annualized rate of $192,000.00.Such salary shall be subject to applicable tax withholding and shall be paidperiodically in accordance with the Company’s normal payroll practices. Suchannual compensation shall be reviewed annually for increase (but not decrease)in the discretion of the Board. In conducting any such annual review, the Boardshall take into account any increase in Executive’s responsibilities, increasesin the compensation of other executives of the Company or any Affiliate (or anycompetitor(s) of either or both), the performance of Executive and/or otherpertinent factors. The annual compensation specified in this Section 4.a,together with any increases in such annual compensation that the Company maygrant from time to time, is referred to in this Agreement as “BaseCompensation.”

 

b.             Bonuses.  The Company may pay to Executive periodic orannual discretionary bonuses for any period ending prior to the end of the Termof Employment in an amount that will be determined by the Company’sCompensation Committee based on such factors as Executive’s performance and theperformance of the Company.

 

c.             ExecutiveBenefits.  While Executive is employedby the Company hereunder, Executive shall be entitled to participate in allemployee benefit, pension and welfare plans and programs of Company forexecutive employees, including any group medical, dental, life insurance anddisability insurance plans, or similar benefit plans of the Company (includinggroup plans sponsored by MediCor), to the extent that Executive meets theeligibility requirements for each individual plan or program. Participation inany such benefits and plans shall be consistent with Executive’s rate ofcompensation to the extent that compensation is a determinative factor withrespect to participation and/or coverage under any such benefit or plan. TheCompany provides no assurance as to the adoption or continuance of anyparticular employee benefit plan or program, and Executive’s participation inany such plan or program shall be subject to the provisions, rules andregulations applicable thereto.

 

d.             Stock Options.  MediCor will, within thirty (30) days ofExecutive’s signature on this Agreement, grant to Executive an option topurchase 80,000 shares of MediCor’s common stock (the “Option”) at the exerciseprice equal to the fair market value of MediCor’s common stock on the date ofgrant. Subject to the terms of the Option (including partial acceleration inthe event of a termination of this Agreement by the Company without Cause or bythe Executive for Good Reason), the Option granted pursuant to this Agreementwill vest with respect to 25% of the shares of common stock purchasablethereunder on each of the first through fourth anniversaries of the date ofgrant, provided Executive remains employed by the Company (or MediCor oranother subsidiary of MediCor) on each such date. Unless specifically providedin this Agreement, vesting and exercise provisions and all other terms andconditions governing the Option shall be as set forth in the plan documents andsuch option agreements as may be entered into with Executive.

 

e.             SalaryContinuation.  Executive shall beentitled to receive his Base Compensation for all periods during which he isunable to perform his duties hereunder by reason of a mental or physicalincapacity, whether resulting from illness, accident or otherwise, prior tobeing determined to be suffering from a Disability.

 

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f.              Expenses.  While Executive is employed by the Companyhereunder, Company shall reimburse Executive for all reasonable out-of-pocketbusiness, travel and entertainment expenses incurred by Executive in theperformance of Executive’s duties and responsibilities hereunder, subject tothe Company’s normal policies and procedures for expense verification anddocumentation as in effect from time to time.

 

g.             PaidLeave.  Executive shall be entitledto paid leave in accordance with Company’s practices and policies for executiveemployees.

 

**5.****             Terminationof Employment.**

 

a.             VoluntaryTermination; Termination for Cause. The Company may terminate Executive’s employment at any time for Causeand Executive may terminate his employment for any reason. If Executive’semployment terminates by reason of Executive’s voluntary resignation withoutGood Reason, or if Executive is terminated for Cause (each as defined herein),Executive shall be entitled to:

 

(1)           BaseCompensation at the rate in effect at the time of his termination through theeffective date of termination of employment;

 

(2)           anybonus awarded but not yet paid;

 

(3)           anydeferred bonus, including interest or other credits on the deferred amounts;

 

(4)           reimbursementfor expenses incurred, but not paid prior to such termination of employment;

 

(5)           suchrights to other compensation and benefits as may be provided in applicableplans and programs of the Company, including, without limitation, applicableemployee benefit plans and programs, according to the terms and conditions ofsuch plans and programs; and

 

(6)           anyequity compensation that is vested as of the effective date of termination ofemployment.

 

No termination forCause shall be effective unless Executive is given at least thirty (30) daysprior written notice authorized by a vote of at least a majority of the membersof the Executive Committee of the Board that the Company intends to terminatehis employment for Cause except under the provisions of Section 11(c)(i) or(iv). Such written notice shall specify the particular act or acts, or failureto act, which is or are the basis for the decision to so terminate Executive’semployment for Cause. Executive shall be given the opportunity within fifteen(15) days of the receipt of such notice to meet with the Board to defend suchact or acts, or failure to act, and if, thereafter, the Board, by majorityvote, continues to maintain that Cause for termination exists, Executive shallbe given fifteen (15) days after such determination to correct such act orfailure to act (if such act or failure to act is reasonably susceptible ofcorrection or cure within such time). Upon failure of Executive, within fifteen(15) days, to correct such act or failure to act, Executive’s employment by theCompany shall be terminated under this subsection for Cause.

 

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Anything herein tothe contrary notwithstanding, if, following a termination of Executive’semployment for Cause due to any conviction of Executive for any crime, suchconviction is overturned on appeal, Executive shall be entitled to the paymentsand the economic equivalent of the benefits he would have received if hisemployment had been terminated without Cause.

 

b.             TerminationWithout Cause or for Good Reason. The Company may terminate Executive’s employment at any time withoutCause upon sixty (60) days advance written notice to Executive, and Executive mayterminate his employment for Good Reason. If the Company terminates Executive’semployment without Cause, other than due to Disability, or Executive terminateshis employment for Good Reason, then, subject to Executive’s continuingobligations under Section 7, Executive shall thereupon be entitled to:

 

(1)           alump sum payment equal to the Base Compensation for the remainder of the Termof Employment (subject to applicable tax withholdings), unless such terminationis within 12 months of a Change in Control, in which event such lump sum shallbe equal to Base Compensation for 12 months;

 

(2)           anybonus awarded but not yet paid;

 

(3)           anydeferred bonus, including interest or other credits on the deferred amounts;

 

(4)           aPro Rata Bonus for the fiscal year in which termination of employment occurs;

 

(5)           reimbursementfor expenses incurred, but not paid prior to such termination of employment;

 

(6)           continuationof the health and welfare benefits of Executive, including, without limitation,any group health insurance and long-term disability insurance generallyprovided to senior executives of the Company other than life insurance oraccidental death and dismemberment insurance, at the level in effect at thetime of his termination of employment through the end of the twelfth (12th)month following such termination of employment or the economic equivalentthereof; and

 

(7)           anyequity compensation that is vested as of the effective date of termination ofemployment or would otherwise vest during the remainder of the Term ofEmployment (or within 12 months of the effective date of termination ofemployment if such termination is within 12 months of a Change in Control),which shall be deemed to have vested immediately prior to the effective date oftermination of employment.

 

Any payments towhich Executive shall be entitled under this Subsection 5.b, including anyeconomic equivalent of any benefit, shall be made as promptly as possiblefollowing the termination of Executive’s employment hereunder and in no eventlater than thirty (30) days following such termination of employment.

 

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c.             Deathor Disability.  In the event ofExecutive’s death or a termination of Executive’s employment due to Executive’sDisability, Executive or his legal representative, as the case may be, shall beentitled to:

 

(1)           BaseCompensation at the rate in effect at the time of his termination, through (x)in the case of death, for a period of three (3) months followingtermination, and (y) in the case of Disability, for the period, if any, betweenthe date of his termination and the date by which the Company’s long-termdisability plan have commenced paying its benefits;

 

(2)           anybonus awarded but not yet paid;

 

(3)           aPro Rata Bonus for the fiscal year in which death or disability occurs;

 

(4)           anydeferred bonuses including interest or other credits on the deferred amounts;

 

(5)           reimbursementfor expenses incurred but not paid prior to such termination of employment;

 

(6)           inthe case of death, Executive’s rights to other compensation and benefits as maybe provided in applicable plans and programs of the Company shall be determinedaccording to the terms and provisions of such plans and programs;

 

(7)           inthe case of Disability, the Company shall continue Executive’s health andwelfare benefits at the level in effect on the date of termination at leastthrough the end of the sixth month following the termination of Executive’semployment or provide the economic equivalent thereof, and Executive’s rightsto other compensation and benefits as may be provided in applicable plans andprograms of the Company shall be determined according to the terms andprovisions of such plans and programs; and

 

(8)           anyequity compensation that is vested as of the effective date of termination ofemployment.

 

d.             NoMitigation; No Offset.  In the eventof any termination of employment under this Section 5, Executive shall beunder no obligation to seek other employment and there shall be no offsetagainst amounts due Executive under this Agreement on account of anyremuneration attributable to any subsequent employment that Executive mayobtain. Any amounts due under this Section 5 are in the nature ofseverance payments, or liquidated damages, or both, and are not in the natureof a penalty.

 

**6.****             Dutyof Loyalty**. As an employee of Company, Executive will devote his best effortsto the interests of the Company. Executive agrees to devote all of his workingtime and attention to his duties hereunder, except for such reasonable amountsof time for personal, charitable, investment and professional activities thatdo not interfere with the service to be rendered by Executive hereunder. DuringExecutive’s employment with the Company, Executive will not, except with thewritten consent of the Board, engage in any activity, investment, interest orassociation (1) which is hostile or adverse to or competitive with theCompany, or (2) which

 

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so occupiesExecutive’s attention as to interfere with the proper and efficient performanceof his duties at the Company, or (3) which interferes with the independentexercise of Executive’s judgment in the Company’s best interests.

 

**7.****             ConfidentialInformation.**  Executive shallmaintain the confidentiality of all confidential and proprietary information ofthe Company, and shall execute and deliver to MediCor its standard ProprietaryInformation and Invention Agreement in the form attached hereto as Schedule I(the “Confidentiality Agreement”). Such obligations shall survive anytermination of Executive’s employment relationship or of this Agreement.

 

**8.****             Third-PartyTrade Secrets.**  Executive willnot, during his employment with Company, improperly use or disclose anyproprietary information or trade secrets of any third party, including theCompany’s customers and suppliers, or of any of Executive’s former orconcurrent employers or companies, if any. Executive shall not bring to thepremises of the Company any unpublished documents or any property belonging tosuch third parties, unless consented to in writing by such third party. Executive’semployment with the Company does not and will not breach any agreement or dutywhich Executive has concerning confidential information belonging to others. IfExecutive is asked to work on any project for the Company which raises aconcern regarding third-party confidential information, Executive will, as soonas this is apparent to Executive, discuss the situation with the Chairman ofCompany without disclosing any confidences.

 

**9.****             Return of Property.**  Upon termination of Executive’s employmentwith the Company, Executive shall deliver promptly to the Company all of thefollowing things which are in Executive’s custody or control:  (1) all records, files, manuals, books,forms, documents, letters, memoranda, data, customer lists, tables,photographs, video tapes, audio tapes, computer disks and other computerstorage media and copies thereof, whether or not containing confidential orproprietary information, that are the property of the Company or that relate inany way to the business, products, services, personnel, customers, prospectivecustomers, suppliers, practices, or techniques of the Company; and (2) allother property of the Company, including but not limited to computers, personaldigital assistants, cellular telephones, pagers, credit cards, and keys.

 

**10.****          ProhibitedPost-Termination Activities.**

 

a.             NoSolicitation.  For a period of oneyear following the termination of Executive’s employment, Executive will notinduce any employee of, or consultant to, MediCor or any of its subsidiaries toengage in any business in which MediCor or any of its subsidiaries is engagedor contemplates engaging, or solicit any employee to leave the employment of MediCoror any of its subsidiaries.

 

b.             Noncompetition.  For a period of one year following thetermination of Executive’s employment with the Company, Executive will notaccept employment with, engage in or render advice or assistance to anybusiness within any market in which MediCor or any of its subsidiaries conductsbusiness or effects sales which competes with or contemplates competition withMediCor or any of its subsidiaries in any capacity in which the employment orrendering of advice, assistance or other services to such business by Executivewould be substantially similar to the services provided by Executive to theCompany during the term of

 

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Executive’semployment with Company or would result in a competitive advantage to suchsubsequent employer.

 

**11.****          Definitions.**  As used herein, the following terms shallhave the respective meanings set forth below.

 

a.             “Affiliate”shall mean any person or entity controlling, controlled by or under commoncontrol with the Company.

 

b.             “Board”shall mean the board of directors of the Company.

 

c.             “Cause”shall mean (i) Executive is convicted of a felony involving moralturpitude, (ii) Executive, in carrying out his duties under thisAgreement, is guilty of a willful act by Executive which constitutes gross misconductand which is materially and demonstrably injurious to the Company, (iii) Executive,in carrying out his duties under this Agreement, is guilty of a willfulviolation of a written Company policy generally applicable to all employees,the violation of which is stated in such policy to be grounds for termination, (iv) anact of fraud against, or the misappropriation of property belonging to, theCompany or its Affiliates resulting in material economic harm to the Company, (v) exceptas otherwise specified in this clause c, the breach in any material respect ofthis Agreement or any confidentiality or proprietary information agreementbetween Executive and the Company or its Affiliates, or (vi) thecommission of a willful act which induces any customer of the Company to breaka contract with the Company resulting in material economic harm to the Company.

 

d.             A“Change in Control” shall be deemed to have occurred if:

 

(1) an event occurs with respect to MediCor of a nature that would be required tobe reported in response to Item 14 of Schedule 14A of Regulation 14Apromulgated under Section 14 of the Securities Exchange Act of 1934 (the “1934Act”);

 

(2) any “person,” as such term is used in Sections 13(d) and 14(d)(2) ofthe 1934 Act, other than Donald K. McGhan or entities related to, controlledby, or owned by Donald K. McGhan or his immediate family (collectively, the “McGhanEntities”) (or with respect to Affiliates, MediCor), becomes a “beneficialowner,” as such term is used in Rule 13d-3 promulgated under the 1934 Act,at any time that MediCor or any Affiliate is a Private Company, of more than51% of the Voting Stock of MediCor or such Affiliate;

 

(3) any “person,” as such term is used in Sections 13(d) and 14(d)(2) ofthe 1934 Act, other than the McGhan Entities (or with respect to Affiliates,MediCor), becomes a “beneficial owner,” as such term is used in Rule 13d-3promulgated under the 1934 Act, while MediCor or any Affiliate is a PublicCompany, of 20% or more of the Voting Stock of MediCor or such Affiliate;

 

(4) any “person” as such term is used in Sections 13(d) and 14(d)(2) ofthe 1934 Act, is the “beneficial owner,” as such term is used in Rule 13d-3promulgated under the 1934 Act, of a greater percentage of the Voting Stock of

 

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MediCor than thepercentage of such Voting Stock held, directly or indirectly, by the McGhanEntities;

 

(5) all or substantially all of the business of MediCor and its consolidatedsubsidiaries is disposed of pursuant to a merger, consolidation, asset sale orother transaction in which MediCor is not the surviving corporation or MediCor(on a consolidated basis) is materially or completely liquidated or in whichall or substantially all of MediCor’s consolidated assets are sold; or

 

(6) MediCor or a subsidiary combines with another company and, immediately afterthe combination, the stockholders of MediCor immediately prior to thecombination hold, directly or indirectly, less than 51% of the Voting Stock ofthe resulting company (viewed on a consolidated basis).

 

Notwithstanding theforegoing, a transaction or event shall not constitute a Change in Control ifsuch transaction or event results from a transaction that is approved inadvance unanimously by MediCor’s executive committee.

 

e.             “Disability”shall mean Executive’s inability to render, for a period of three consecutivemonths, full and effective services hereunder by reason of permanent mental orphysical disability, whether resulting from illness, accident or otherwise;provided, however, that in no event will Executive be considered disabled forthe purposes of this Agreement unless he is deemed disabled pursuant to theCompany’s long-term disability plan (or any plan in which the Company’semployees participate).

 

f.              “GoodReason” shall mean and exist if, without Executive’s prior written consent, oneor more of the following events occurs:

 

(1)           Executiveis not appointed to or is otherwise removed from any office or positionprovided for in Section 1 or Section 3.a above, for any reason otherthan the termination of his employment or transfer to a substantiallyequivalent or superior office or position within the Company (suchdetermination to be made on the overall responsibilities of Executive withinthe Company);

 

(2)           Executiveis assigned duties or responsibilities that are, when taken as a whole,inconsistent, in any significant respect, with the scope of duties andresponsibilities associated with Executive’s office or position as described inSection 1 or Section 3.a above;

 

(3)           Executivesuffers a material reduction, when taken as a whole, in the authorities, dutiesor responsibilities associated with his office or position as described in Section 1or Section 3.a above, on the basis of which he makes a determination ingood faith that he can no longer carry out such office or position in themanner contemplated at the time this Agreement was entered into;

 

(4)           Executive’sBase Compensation is decreased by the Company, or his benefits or opportunitiesunder any employee benefit or incentive plan or program of the Company is orare materially reduced, with the result that Executive’s overall benefitspackage is materially reduced;

 

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(5)           Thereoccurs a Change in Control;

 

(6)           theCompany fails to pay Executive any deferred payments under any bonus orincentive plans which are due to him at that time;

 

(7)           theCompany fails to reimburse Executive within a reasonable time for businessexpenses in accordance with this Agreement or the Company’s policies,procedures or practices;

 

(8)           ifand to the extent applicable, the Company fails to agree to or actuallyindemnify Executive for his actions and/or inactions, as either a director orexecutive officer of the Company, to the fullest extent permitted by Delawarelaw, and/or the Company fails to maintain satisfactory levels of directors andofficers liability insurance coverage for Executive when such insurance isavailable and maintained by MediCor;

 

(9)           theCompany fails to obtain a written agreement reasonably satisfactory toExecutive from any successor or assign of the Company to assume and performthis Agreement; or

 

(10)         theCompany purports to terminate Executive’s employment for Cause and suchpurported termination of employment is not effected in accordance with theprocedures required by this Agreement, and for purposes of this Agreement, suchpurported termination of employment shall be invalid and of no force andeffect.

 

g.             “PrivateCompany” shall mean an entity that has no class of its Voting Stock registeredpursuant to Section 12(b), 12(g) or 15(d) of the 1934 Act.

 

h.             “ProRata Bonus” shall mean an amount equal to the annual bonus otherwise payablewith respect to the year in question, calculated as if Executive had beenemployed by the Company for the full year, multiplied by a fraction, thenumerator of which is the number of days in such year during which Executive isactually employed by the Company and the denominator of which is 365.

 

i.              “PublicCompany” shall mean an entity that has one or more classes of its Voting Stockregistered pursuant to Section 12(b), 12(g) or 15(d) of the 1934Act.

 

j.              “VotingStock” shall mean capital stock (or similar security) of any class or classeshaving general voting power under ordinary circumstances, in the absence ofcontingencies, to elect the directors of a corporation or similar managers ofanother entity.

 

**12.****          Miscellaneous.**

 

a.             Amendments;Assignment.  No amendment ormodification of this Agreementshall be deemed effective unless made in writing and signed by the partieshereto. This Agreement may be assigned by the Company to MediCor or awholly-owned subsidiary of MediCor without Executive’s consent.

 

b.             NoWaiver.  No term or condition of thisAgreement shall be deemed to have been waived, except by a statement in writingsigned by the party against whom enforcement of the waiver is sought.  Any written waiver shall not be deemed acontinuing

 

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waiver unlessspecifically stated, shall operate only as to the specific term or condition waived and shall notconstitute a waiver of such term or condition for the future or as to any actother than that specifically waived.

 

c.             Counterparts.  This Agreement may be executed in any numberof counterparts, and such counterparts executed and delivered, each as an original, shall constitutebut one and the same instrument.

 

d.             Severability.  To the extent that any portion of anyprovision of this Agreement shall be invalid or unenforceable, it shall beconsidered deleted herefrom andthe remainder of such provision and of this Agreement shall be unaffected andshall continue in full force and effect.

 

e.             Captionsand Headings.  The captions andparagraph headings used in thisAgreement are for convenience of reference only and shall not affect theconstruction or interpretation of this Agreement or any of the provisionshereof.

 

f.              Notices.  All notices, requests, demands and othercommunications required or permitted to be given hereunder shall be in writingand shall be deemed to have been duly given (i) upon receipt, if deliveredpersonally or via courier, (ii) upon confirmation of receipt, if given byelectronic facsimile provided that another copy is sent by another means permitted by this subsection withintwo (2) business days thereafter, and (iii) on the third business dayfollowing mailing, if mailed first-class, postage prepaid, registered orcertified mail from the continental United States as follows:

 

If to Companyto:

 

MediCor Ltd.

4560 S. Decatur Blvd., Ste. 300

Las Vegas, Nevada 89103

Fax: (702) 932-4561

Attn: Chief Operating Officer

 

If toExecutive to:

 

Marc S. Sperberg

1917 Grey Eagle Street

Henderson, NV 89074

Fax: (702) 920-8086

 

Any party mayby notice given in accordance with this subsection to the other party todesignate another address or person for receipt of notices hereunder.

 

g.             Attorneys’Fees.  If any legal action or otherproceeding is brought for the enforcement of this Agreement, or because of analleged dispute, breach, default or misrepresentation in connection with any ofthe provisions of this Agreement, the successful or prevailing party shall beentitled to recover such reasonable attorneys’ fees and other costs incurred inthat action or proceeding, in addition to any other relief to which it may beentitled, as may be awarded by the court or arbitrator.

 

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h.             GoverningLaw.  The parties agree that thisAgreement will be governed by the laws of the State of Delaware.

 

i.              Arbitration.  Any controversy or claim arising out of orrelating to this Agreement or the breach thereof (including the arbitrabilityof any controversy or claim), shall be settled by arbitration in accordancewith the laws of the State of Delaware by one arbitrator. If the parties cannotagree on the appointment of an arbitrator, then the arbitrator shall beappointed by the American Arbitration Association. The arbitration shall beconducted in Clark County, Nevada in accordance with the rules of theAmerican Arbitration Association, except with respect to the selection of anarbitrator which shall be as provided in this Section 12.i. The cost ofany arbitration proceeding hereunder shall be borne by the Company. The awardof the arbitrator shall be binding upon the parties. Judgment upon the awardrendered by the arbitrator may be entered in any court having jurisdictionthereof.

 

If it shall be necessaryor desirable for Executive to retain legal counsel and incur other costs andexpenses in connection with the enforcement of any or all of his rights underthis Agreement, and provided that Executive substantially prevails in theenforcement of such rights, the Company shall pay (or Executive shall beentitled to recover from the Company, as the case may be) Executive’sreasonable attorneys’ fees and costs and expenses in connection with theenforcement of his rights including the enforcement of any arbitration award.

 

j.              EntireAgreement.  This Agreement containsthe entire agreement of the parties relating to Executive’s employment with theCompany and supersedes all prior agreements and understandings with respect to such subject matter.

 

IN WITNESS WHEREOF, Executive, the Company and, with respect to Section 4.d,MediCor have executed this Agreement as of the date first set forth above.

 
|   |  “COMPANY” |
|--------|---------------------------|
|   |                      |
|   | MEDICOR LTD.              |
|   |                      |
|   | By:                       | /s/ Donald  K. McGhan |   |
|   |                      | Donald K.  McGhan |
|   |                      | Its:  Chairman |
|   |                      |
|   |                      |
|   | “EXECUTIVE”     |
|   | By:                       | /s/ Marc S.  Sperberg |   |
|   |                      |   |
|   |                      | Marc S.  Sperberg |
|        |                           |  |  |  |  |

 

WITH RESPECT TO SECTION 4.D:

 

MEDICOR LTD.

 

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| By:    | /s/ Donald  K. McGhan |   |
|--------|-----------------------|--------|
|   | Donald K.  McGhan     |
|   | Its:  Chairman        |

 

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