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 ofthe Corporation or any of its Affiliates or Subsidiaries which is treated as confidential orproprietary;1.1.8 **“Disability”**1.1.8.1 Employee shall be deemed permanently disabled if (i) Employee is unable toprovide the Corporation at least thirty (30) hours per week of continuous service ofthe work time that would normally be given by him during a continuous six (6) monthperiod and if (ii) at the expiration of said six (6) month period insofar as can bereasonably foreseen Employee will thereafter be unable to give at least thirty (30)hours per week of normal effective working time.1.1.8.2 Until the expiration of the six (6) month period of disability, Employee shallbe entitled to receive his regularly established salary, less any monthly disabilityincome insurance payments.1.1.8.3 In the event the parties hereto are unable to agree on the existence of adisability or the date on which the aforesaid six (6) month period of disabilitybegan, the Corporation and Employee shall each designate a physician and the twophysicians so designated shall then select a third physician, which third physicianshall then determine whether a permanent disability exists within the meaning of thisAgreement and when the disability commenced if it does exist. The determination ofthe said third physician shall bind the parties hereto. For convenience ofdetermining the rights of the parties under this provision, a permanent disabilityshall be deemed to begin on the first day of the month which immediately follows thedate on which the disability actually occurred, or is judged by the aforesaid thirdphysician to have occurred. If the said third physician determines that Employee isnot capable of performing the services required of him hereunder, the Corporationshall 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 solong as Employee purports to be disabled.1.1.8.4 The foregoing to the contrary notwithstanding, in the event the Corporationterminates the employment of Employee due to the disability of Employee and if, aftersuch termination and prior to the normal termination date of this Agreement (or anyextension or renewal hereof) Employee is judged by the aforesaid third physician to beable to return to his normal duties, then the Corporation shall hire Employee as aconsultant to the Corporation for the balance of the term of this Agreement (or anyextension or renewal hereof), at Employee’s salary as of the date of termination andsubject 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 (10%) by the Corporation in theEmployee’s Salary (set forth in Section 5.1);1.1.10.2 the taking of any action by the Corporation that would materially andadversely affect the Employee’s participation in, or materially reduce the Employee’sBenefits and other similar plans in which the Employee is participating at the datehereof (or such other plans as may be implemented after the date hereof that providethe Employee with substantially similar benefits), or the taking of any action by theCorporation that would deprive the Employee of any material fringe benefit enjoyed byhim at the date hereof unless such action by the Corporation affects all employees orreduces or deprives all or a majority of the Corporation’s employees of benefitspreviously enjoyed.1.1.10.3 The taking of any action by the Corporation that would materially andadversely affect Employee’s duties under this Agreement.1.1.10.4 The Corporation relocates Employee’s principal office outside the GreaterMinneapolis, Minnesota area.
 

 
1.1.10.5 In the event of a breach or a claimed breach of this Agreement by theCorporation under this Section 1.1.10, Employee shall give notice to the Corporationof any such claimed breach and the Corporation shall have thirty (30) days from thedate 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 involvinglarceny, embezzlement, conversion or any other act involving the misappropriation ofCorporation funds in the course of his employment or thatEmployee materially fails to perform or fulfill the duties and responsibilities as set forthin Section 2 or Section 3 of this Agreement;1.1.12 “**Person**” means any individual, partnership, limited partnership, joint venture,syndicate, sole proprietorship, limited liability Corporation, Corporation or corporationwith or without share capital, unincorporated association, trust, trustee, executor,administrator or other legal personal representative, regulatory body or agency, governmentor governmental agency, authority or entity however designated or constituted;1.1.13 **“Subsidiaries”**has the meaning attributed to such term by Section 5001 of the DelawareCode as the same may be amended from time to time and any successor legislation thereto; and1.1.14 **“Year of Employment”**means any twelve (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, inthe position of President, Midwest Surgical Services, Inc. In such position, the Employee shallperform and fulfill such duties and responsibilities as the Corporation may designate from time totime. The Employee shall report to the Chief Executive Officer of the Corporation or such otherperson or persons as designated by the Board of Directors from time to time**.**Employee shall becovered under the Corporation’s policy or policies of Directors and Officers insurance. Employeeshall perform his duties hereunder in the Greater Minneapolis metropolitan area and at such otherlocation 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 servethe Corporation and its Subsidiaries as contemplated above. The Employee shall devote all of hisworking time and attention to his employment hereunder and shall use his best efforts to promotethe interests of the Corporation.**4.****Employment Period**     Subject to the terms and conditions hereinafter provided, the term of the Executive’semployment pursuant to this Agreement shall commence on November 1, 2005 (“Effective Date”). Uponthe Effective Date, the Executive’s employment shall continue unless and until sooner terminatedunder this Agreement (“Initial Term”).**5.****Remuneration**     5.1 **Salary****.**The Corporation shall pay the Employee a salary minus applicabledeductions and withholdings in respect of each Year of Employment of this Agreement calculated atthe rate of Two Hundred Twenty Thousand Six Hundred Sixty-seven Dollars **($220,667.00)**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 beincreased, 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 amaximum amount of fifty percent (50%) of Employee’s Salary, less applicable deductions andwithholdings. The payment of any bonus will be based on the Employee’s performance within aspecific area of responsibility and/or the Corporation achieving its financial objectives for thefiscal year; the amount of any such bonus and whether any bonus is earned shall be determined bythe Corporation in its sole discretion. Any bonus earned shall be paid within sixty (60) days afterthe end of the Corporate fiscal year.     5.3 **[Intentionally left blank]**
 

 
     5.4 **Benefits**. The Corporation shall provide to the Employee, in addition to Salary,bonus and stock options, if any, the benefits (“Benefits”) described in the Corporation’s EmployeeHandbook, such Benefits to be provided in accordance with and subject to the terms and conditionsof the Handbook as such is amended from time to time. Employee shall also be covered under theCorporation’s liability insurance policy for directors and officers under the same terms andconditions that apply to other directors and officers of the Company.     5.5 **Pro-Rata Entitlement in the Event of Termination****.**If the Employee’s employment isterminated pursuant to Section 8 or if the Employee dies during a Year of Employment, the Employeeshall be entitled to receive that portion of the Salary in respect of the Year of Employmentrepresenting the number of days the Employee actually worked and only any bonus earned prior to thetermination of the Employee’s employment.**6.****Expenses**     Subject to the terms of the Corporation’s expense policy, as such may be revised from time totime, the Corporation shall pay, or reimburse the Employee for, all authorized and appropriatetravel and out-of-pocket expenses reasonably incurred or paid by the Employee in the performance ofhis duties and responsibilities, upon presentation of expense statements and receipts and suchother supporting documentation as the Corporation may reasonably require.**7.****Vacation**     The Employee shall be entitled during each Year of Employment to paid vacation, and suchvacation equal shall accrue at the rate each month 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 CEO: (i) no more than two (2) weeks of vacation shallbe taken consecutively, and (ii) no more than five (5) days of the vacation entitlement earned inany Year of Employment can be carried forward to a subsequent Year of Employment. Notwithstandingthe foregoing, in the event that the Employee’s employment is terminated pursuant to thisAgreement, the Employee shall not be entitled to receive any payment in lieu of any vacation towhich he was entitled and that 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 Employeeif for reasons of Just Cause or Disability of Employee;8.1.2 by the Corporation for any reason other than Just Cause orDisability of Employee; or8.1.3 by the Employee on one (1) month written notice to theCorporation.Notwithstanding the terms herein, the Employee’s employment shall be automaticallyterminated, without further obligation to the Employee or his heirs, in the event of hisdeath.8.2 **Effective Date**. The effective date on which the Employee’s employment shall beterminated 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 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 givingrise to the termination;8.2.3 in the case of termination under Section 8.1.3, on the date one (1) month afternotice to the Corporation, provided the Corporation utilizes Employee’s servicesduring this one (1) month after notice; and8.2.4 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 Corporationunder Section 8.1.2, the Employee shall be entitled, upon receipt by the Corporation of a waiverand 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 (12) months Salary, less anyamounts owing by the Employee to the Corporation for any reason and applicable deductions andwithholdings, payable in one lump sum.     Except as provided above in this section, where the Employee’s employment has been terminatedby the Employee or by the Corporation for any reason, the Employee shall not be entitled to receiveany 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 thisAgreement and within twelve (12) months following a Change of Control, the Employee’s employment isterminated by the Employee for Good Reason, the Employee shall be entitled, upon receipt by theCorporation of a waiver and release in a form acceptable to the Corporation, to receive from theCorporation, a payment equal to twelve (12) months Salary, less any amounts owning by the Employeeto 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 theemployment of the Employee as a result of death, Disability or retirement of the Employee or by theCorporation 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 otherprovision of this Agreement, if any payment to or for the benefit of the Employee under thisAgreement either alone or together with other payments to or for the benefit of the Employee wouldconstitute 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 amountthat will eliminate both the imposition of the excise tax imposed by Section 4999 of the Code andthe disallowance of deductions to the Company under Section 280G of the Code for any such payments.The amount and method of any reduction in the payments under this Agreement pursuant to thisSection 10.2 shall be as reasonably determined by the Compensation Committee of the Board ofDirectors of the Company.**11.****No Obligation to Mitigate**     The Employee shall not be required to mitigate the amount of any payment or Benefits providedfor in this Agreement by seeking other employment or otherwise, nor (except as specificallyprovided herein), shall the amount of any payment provided for in this Agreement be reduced by anycompensation earned by the Employee as a result of employment by another employer after terminationor otherwise.**12.****Non-Competition**     The Employee shall not, either during his employment and for a one (1) year period followingthe termination of Employee’s employment (“Restricted Period”), within the United States of Americaor Canada, directly or indirectly, in any manner whatsoever including, without limitation, eitherindividually, 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, age-related macular degeneration, optometric or optical services,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 othercompensation arrangements) in or in respect of the business of any Person that carries on abusiness of refractive laser corrective surgery, cataract surgery, age-related maculardegeneration, optometric or optical services, ophthalmic ambulatory surgery centers orcarries on any business conducted by the Corporation; or12.3 advise, lend money to, guarantee the debts or obligations of or permit the use of theEmployee’s name or any parts thereof by any Person engaged in the refractive laser correctivesurgery, age-related macular degeneration, optometric or optical services, ophthalmicambulatory surgery centers or which competes or competed directly or indirectly with theCorporation or any of its Affiliates or Subsidiaries, during the Employee’s employment or atthe end thereof, as the case may be.
 

 
     Notwithstanding the foregoing, nothing herein shall prevent the Employee from owning not morethan five percent (5%) of the issued shares of a corporation, the shares of which are listed on arecognized stock exchange or traded in the over the counter market in Canada or the United States, that carries on a business that is the same as orsubstantially similar to or that competes with or would compete with the business of theCorporation or any of its Affiliates or Subsidiaries.**13.****No Solicitation of Patients**     The Employee shall not, either during his employment or the Restricted Period, directly orindirectly, contact or solicit any customers or patients of the Corporation or any of itsAffiliates or Subsidiaries for the purpose of selling to those patients any products or serviceswhich are the same as or substantially similar to, or in any way competitive with, the refractivelaser corrective surgery, cataract surgery, age-related macular degeneration, optometric or opticalservices, ophthalmic ambulatory surgery center products or services provided by the Corporation orany of its Affiliates or Subsidiaries during Employee’s employment or at the end thereof, as thecase may be. For the purpose of this section , a designated patient means a Person who was apatient 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 orindirectly, employ or retain as an independent contractor any employee of the Corporation or any ofits Affiliates or Subsidiaries or induce or solicit, or attempt to induce, any such person to leavehis/her employment.**15.****Confidentiality**     The Employee shall not, either during his employment or at any time thereafter, directly orindirectly, use or disclose to any Person any Confidential Information; provided, however, thatnothing in this section shall preclude the Employee from disclosing or using ConfidentialInformation if:15.1 the Confidential Information is available to the public or in the public domain at thetime of such disclosure or use, without breach of this Agreement; or15.2 disclosure of the Confidential Information is required by law or legal process or isdirectly necessary in connection with any legal action or proceeding initiated againstEmployee. In such event, Employee shall notify the Corporation in writing of the disclosureto be made and afford the Corporation the reasonable opportunity to seek a protective orderor 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 ineffect in perpetuity and shall exist and continue in full force and effect notwithstanding anybreach or repudiation, or alleged breach or repudiation, by the Corporation of this Agreement.**16.****Remedies**     The Employee acknowledges that a breach or threatened breach by the Employee of the provisionsof any of sections 12 to 15 inclusive will result in the Corporation and its shareholders sufferingirreparable harm which is not capable of being calculated and which cannot be fully or adequatelycompensated by the recovery of damages alone. Accordingly, the Employee agrees that theCorporation and any successor corporation shall be entitled to temporary and permanent injunctiverelief, specific performance and other equitable remedies, in addition to any other relief to whichthe Corporation or any successor corporation may become entitled.**17.****Notices**     Any notice or other communication required or permitted to be given hereunder shall be inwriting and shall be given via certified or registered mail return receipt requested, by facsimilewith confirmation of receipt or via national and reputable overnight delivery service, except thatany notice of termination by the either party shall be given by certified mail return receiptrequested. Any such notice shall be deemed to have been received on the day of delivery. Noticeof change of address shall also be governed by this section . Notices and other communicationsshall be addressed as follows:
 

 
 a) if to the Employee:    James B. Tiffany 10532 Misty Morning Lane Eden Prairie, MN 55347  b) 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 notaffect the construction or interpretation hereof.**19.****Invalidity of Provisions**     Each of the provisions contained in this Agreement is distinct and severable and a declarationof invalidity or unenforceability of any such provision by a court of competent jurisdiction shallnot 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 orSubsidiaries of the Corporation pertaining to the subject matter of this Agreement. This Agreementsupersedes and replaces all prior agreements, if any, written or oral, with respect to theEmployee’s employment by the Corporation and any rights that the Employee may have by reason of anysuch prior agreement or by reason of the Employee’s prior employment, if any, by the Corporation orby 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’sAffiliates and Subsidiaries in connection with the subject matter of this Agreement except asspecifically 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 shallbe binding unless executed in writing by the party to be bound thereby. No waiver of any provisionof this Agreement shall constitute a waiver of any other provision nor shall any waiver of anyprovision of this Agreement constitute a continuing waiver unless otherwise expressly provided.**22.****Currency**     Except as expressly provided in this Agreement, all amounts in this Agreement are stated andshall 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 ofMissouri, without regard to its conflict of laws rules, which are deemed inapplicable herein. Theparties hereto each consent to the personal jurisdiction of the federal and state courts of theState of Missouri.**24.****Counterparts**     This Agreement may be signed in counterparts, and each of such counterparts shall constitutean original document, and such counterparts, taken together, shall constitute one and the sameinstrument.
 

 
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.      **EMPLOYEE**