EMPLOYMENT AGREEMENT
This
Employment Agreement is made and entered into by and between STAAR Surgical
Company (the “Company”), a Delaware corporation located at 0000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 and Xxxxxxx Xxxxxxx (hereinafter the “Employee”),
located at, CA, effective November, 2002.
RECITALS
A. WHEREAS,
the Company wishes to retain the services of Employee and Employee wishes to
render services to Company as Global Controller.
B. WHEREAS,
the Employee and the Company desire to enter into this Employment Agreement and
to establish the terms and conditions of the Employee’s employment.
C. WHEREAS,
the Company and the Employee intend that this Agreement will supercede and
replace any and all other employment agreements or arrangements for employment
entered into by and between the Company and the Employee, and that such
employment agreements or arrangements shall have no further force or
effect.
AGREEMENT
NOW,
THEREFORE, for and in consideration of the promises, covenants, and agreements
contained herein, the parties hereto agree as follows:
ARTICLE
1
EMPLOYMENT
1.1 Employment. The
Company hereby agrees to employ the Employee and the Employee hereby agrees to
serve the Company in the capacity of Global Controller, based upon the terms and
conditions set forth in this agreement.
1.2
Duties. During
the term of her employment, the Employee shall devote her full time, efforts,
abilities, and energies to the Company’s business and, in particular, shall use
her best efforts, skill, and abilities to promote the general welfare and
interests of the Company. The Employee shall loyally,
conscientiously, and professionally do and perform all such duties and
responsibilities as shall be reasonably assigned by the Company and the
Employee’s superiors from time to time, and shall comply with all of the
Company’s personnel policies and procedures, including, but not limited to,
those contained in The Company’s Employee Handbook.
1.3 Noncompetition,
Nonsolicitation and Noninterference and Proprietary Property and Confidential
Information Provisions.
(a) Applicable
Definitions.
For
purposes of this paragraph, the following capitalized terms shall have the
definitions set forth below:
(i) “Business Segments” -
The term “Business Segments” is defined as each of Company’s (or Company’s
affiliates’) products or product lines.
(ii) “Competitive
Business” - The term “Competitive Business” is defined as any business
that is or may be competitive with or similar to or adverse to any of Company’s
(or Company’s affiliates’) Business Segments, whether such business is conducted
by a proprietorship, partnership, corporation or other entity or
venture.
(b) Nonsolicitation and
Noninterference.
(1) Covenants. Employee
hereby covenants and agrees that Employee shall not, either for Employee’s own
account or directly or indirectly in conjunction with or on behalf of any
person, partnership, corporation or other entity or venture:
(i) During
the term of this Agreement and for a period of one (1) year from the date this
Agreement terminates or expires, solicit or employ or attempt to solicit or
employ any person who is then or has, within twelve (12) months prior thereto,
been an officer, partner, manager, agent or employee of Company or any affiliate
of Company whether or not such a person would commit a breach of that person’s
contract of employment with Company or any affiliate of Company, if any, by
reason of leaving the service of Company or any affiliate of Company (the
“Nonsolicitation Covenant”); or
(ii) During
the term of this Agreement and for a period of one (1) year from the date of the
Agreement, on behalf of, directly or indirectly, any Competitive Business, or
for the purpose of or with the reasonably foreseeable effect of harming the
business of Company, solicit the business of any person, fm or company which is
then, or has been at any time during the preceding twelve (12) months prior to
such solicitation, a customer, client, contractor, supplier or vendor of Company
or any affiliate of Company (the ‘‘Noninterference Covenant)”.
(2) Acknowledgements. Each
of the parties acknowledges that: (i) the covenants and the restrictions
contained in the Nonsolicitation and Noninterference Covenants are necessary,
fundamental, and required for the protection of the business of Company; (ii)
such Covenants relate to matters which are of a special, unique and
extraordinary value; and (iii) a breach of either of such Covenants will result
in irreparable harm and damages which cannot be adequately compensated by a
monetary award.
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(3) Judicial
Limitation. Notwithstanding the foregoing, if at any time,
despite the express agreement of Company and Employee, a court of competent
jurisdiction holds that any portion of this Nonsolicitation and/or
Noninterference Covenant is unenforceable by reason of its extending for too
great a period of time or by reason of its being too extensive in any other
respect, such Covenant shall be interpreted to extend only over the maximum
period of time or to the maximum extent in all other respects, as the case may
be, as to which it may be enforceable, all as determined by such court in such
action.
(4) Termination of
Agreement. The covenants and agreements contained in the
Nonsolicitation and Noninterference Covenant shall terminate and be of no effect
if this Agreement is terminated by Company without Cause.
(c) Proprietary Property;
Confidential Information.
(1) “Applicable
Definitions” - For purposes of this paragraph, the following capitalized
terms shall have the definitions set forth below:
(i) “Confidential
Information” - The term “Confidential Information” is collectively and
severally defined as any information, matter or thing of a secret, confidential
or private nature, whether or not so labeled, which is connected with Company’s
business or methods of operation or concerning any of Company’s suppliers,
customers, licensors, licensees or others with whom Company has a business
relationship, and which has current or potential value to Company or the
unauthorized disclosure of which could be detrimental to
Company. Confidential Information shall be broadly defined and shall
include, by way of example and not limitation: (i) matters of a business nature
available only to management and owners of Company of which Employee may become
aware (such as information concerning customers, vendors and suppliers,
including their names, addresses, credit or financial status, buying or selling
habits, practices, requirements, and any arrangements or contracts that Company
may have with such parties, Company’s marketing methods, plans and strategies,
the costs of materials, the prices Company obtains or has obtained or at which
Company sells or has sold its products or services, Company’s manufacturing and
sales costs, the amount of compensation paid to employees of Company and other
terms of their employment, financial information such as financial statements,
budgets and projections, and the terms of any contracts or agreements Company
has entered into) and (ii) matters of a technical nature (such as product
information, trade secrets, knowhow, formulae, innovations, inventions, devices,
discoveries, techniques, formats, processes, methods, specifications, designs,
patterns, schematics, data, compilation of information, test results, and
research and development projects). For purposes of the foregoing,
the term “trade secrets” shall mean the broadest and most inclusive
interpretation of trade secrets as defined by Section 3426.1(d) of the
California Civil Code (the Uniform Trade Secrets Act) and cases interpreting the
scope of said Section.
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(ii) “Proprietary Property”
- The term “Proprietary Property” is collectively and severally defined as any
written or tangible property owned or used by Company in connection with
Company’s business, whether or not such property also qualifies as Confidential
Information. Proprietary Property shall be broadly defined and shall
include, by way of example and not limitation, products, samples, equipment,
files, lists, books, notebooks, records, documents, memoranda, reports,
patterns, schematics, compilations, designs, drawing, data, test results,
contracts, agreements, literature, correspondence, spread sheets, computer
programs and software, computer print outs, other written and graphic records,
and the like, whether originals, copies, duplicates or summaries thereof,
affecting or relating to the business of Company, financial statements, budgets,
projections, invoices.
(2) Ownership of Proprietary
Property. Employee acknowledges that all Proprietary Property
which Employee may prepare, use, observe, come into possession of and/or control
shall, at all times, remain the sole and exclusive property of
Company. Employee shall, upon demand by Company at any time, or upon
the cessation of Employee’s employment, irrespective of the time, manner, cause
or lack of cause of such cessation, immediately deliver to Company or its
designated agent, in good condition, ordinary wear and tear and damage by any
cause beyond the reasonable control of Employee excepted, all items of the
Proprietary Property which are or have been in Employee’s possession or under
his control, as well as a statement describing the disposition of all items of
the Proprietary Property beyond Employee’s possession or control in the event
Employee has not previously returned such items of the Proprietary Property to
Company.
(3) Agreement Not to Use or
Divulge Confidential Information. Employee agrees that he will
not, in any fashion, form or manner, unless specifically consented to in writing
by Company, either directly or indirectly use, divulge, transmit or otherwise
disclose or cause to be used, divulged, transmitted or otherwise disclosed to
any person, firm or corporation, in any manner whatsoever (other than in
Employee’s performance of duties for Company or except as required by law) any
Confidential Information of any kind, nature or description. The
foregoing provisions shall not be construed to prevent Employee from making use
of or disclosing information which is in the public domain through no fault of
Employee, provided, however, specific information shall not be deemed to be in
the public domain merely because it is encompassed by some general information
that is published or in the public domain or in Employee’s possession prior to
Employee’s employment with Company.
(4) Acknowledgement of
Secrecy. Employee acknowledges that the Confidential
Information is not generally known to the public or to other persons who can
obtain economic value from its disclosure or use and that the Confidential
Information derives independent economic value thereby, and Employee agrees that
he shall take all efforts reasonably necessary to maintain the secrecy and
confidentiality of the Confidential Information and to otherwise comply with the
terms of this Agreement.
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(5) Inventions,
Discoveries. Employee
acknowledges that any inventions, discoveries or trade secrets, whether
patentable or not, made or found by Employee in the scope of his employment with
Company constitute property of Company and that any rights therein now held or
hereafter acquired by Employee individually or in any capacity are hereby
transferred and assigned to Company, and agrees to execute and deliver any
confirmatory assignments, documents or instruments of any nature necessary to
carry out the intent of this paragraph when requested by Company without further
compensation therefore, whether or not Employee is at the time employed by
Company. Provided, however, notwithstanding the foregoing, Employee
shall not be required to assign his rights in any invention which qualifies
fully under the provisions of Section 2870(a) of the California Labor Code,
which provides, in pertinent part, that the requirement to assign “shall not
apply to any invention that the employee developed entirely on his or her own
time without using employer’s equipment, supplies, facilities or trade secret
information except for those inventions that either:
(i) Relate
at the time of conception or reduction to practice of the invention to the
employer’s business, or actual or demonstrably anticipated research or
development of the employer; or
(ii) Result
from any work performed by the employee for the employer.”
Employee
understands that she bears the full burden of proving to Company that an
invention qualifies fully under Section 2870(a). By signing this
Agreement, Employee acknowledges receipt of a copy of this Agreement and of
written notification of the provisions of Section 2870.
ARTICLE
2
COMPENSATION
2.1 Salary. The
Company shall pay the Employee a salary payable at the gross rate of $4991.54
per pay period, to be paid on a bi-weekly basis. Employee’s annual
salary shall be reviewed periodically by Company for the purpose of determining
whether Employee’s salary shall be increased.
2.2 Employee
Benefits. In addition to the compensation specified above, the
Employee shall be permitted to participate in certain employee benefit programs
in the same manner and subject to the same terms, conditions, and limitations as
other full-time employees of the Company. The Company will provide a
life insurance policy with a face value of $250,000, in addition to the other
benefits that the employee is entitled to participate in. The
Employee will also be eligible for four weeks vacation per year.
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2.3 Business
Expenses. The Company will reimburse the Employee for
reasonable business expenses as outlined in the company’s business expense
policy and provided that these expenses were incurred on Company business and
that expense reports regarding these expenses are submitted to the Company in a
timely manner.
2.4 Bonus. In
addition to the salary described above, the Employee shall be eligible for an
annual bonus of up to 20% of base salary based on the achievement of corporate
financial performance measures and personal MBO’s.
ARTICLE
3
TERMINATION
OF EMPLOYMENT
3.1 Termination. This
employment relationship may be terminated for any of the reasons provided
below:
a. Termination for
Cause. Company may terminate this Agreement for “Cause”, upon
15 days written notice. Cause means any of the following: (1) willful
breach or habitual neglect of the duties which Employee is required to perform
under the terms of this Agreement, (2) any act of dishonesty, fraud,
insubordination, misrepresentation, gross negligence or willful misconduct, (3)
conviction of a felony, or (4) intentional violation of any Company
policy. Company may terminate this Agreement for Cause by giving
written or verbal notice of termination to Employee. With the
exception of the covenants set forth in Paragraph 1.3,4.1 and 4.3, upon such
termination the obligations of Employee and Company under this Agreement shall
immediately cease. Such termination shall be without prejudice to any
other remedy to which Company may be entitled either at law, in equity, or under
this Agreement. If Employee’s employment is terminated pursuant to
this paragraph, the Company shall pay to Employee, immediately upon such
termination, any accrued but unpaid compensation to which Employee is entitled
on the date of such termination.
b. Termination for Poor
Performance. Employer may terminate employee’s employment
under this Agreement for “Poor Performance”. Poor Performance is a
failure of the Employee to properly meet the duties and responsibilities of her
position in a competent fashion, as determined by the Chief Financial Officer or
Chief Executive Officer. Such termination for “Poor Performance”
shall occur only after employee has been advised in writing of the failure to
meet the duties and responsibilities, or guidelines/goals and given a reasonable
period of time of at least employment, and shall receive one additional month of
base salary. Employee shall be entitled to no other payments or
benefits after a termination for Poor Performance. With the exception
of the covenants set forth in Paragraph 1.3, 4.1 and 4.3, upon such termination
the obligations of Employee and Company under this Agreement shall immediately
cease.
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c. Death. Employee’s
employment shall terminate upon the death of Employee. Upon such
termination, the obligations of Employee and Company under this Agreement shall
immediately cease. In the event of a termination pursuant to this
paragraph, Employee shall be entitled to receive any amount of compensation
earned but unpaid. All other rights Employee has under any benefit or
stock option plans and programs shall be determined in accordance with the terms
and conditions of such plans and programs.
d. Election By
Employee. Employee’s employment may be terminated at any time
by Employee upon not less than thirty (30) days written notice to
Company. With the exception of the covenants set forth in Paragraphs
1.3, 4.1 and 4.3, upon such termination the obligations of Employee and the
Company under this Agreement shall immediately cease. In the event of
a termination pursuant to this paragraph, Employee shall be entitled to receive
any amount of compensation earned but unpaid. All other rights
Employee has under any benefit or stock option plans and programs shall be
determined in accordance with the terms and conditions of such plans and
programs.
e. Election by Company Due to a
Change of Control. If Employee’s employment is terminated by
Company due to the sale or disposition by the Company of substantially all of
its business or assets or the sale of the capital stock of Company in connection
with the sale or transfer of a controlling interest in Company to a third party
or the merger or consolidation of Company with another corporation as part of a
sale or transfer of a controlling interest in Company to a third party and if the Employee’s
essential duties and responsibilities as set forth in the job description for
the position that Employee is in at the time of the change of control are
significantly changed due to a change in control, then in lieu of any other
rights or benefits under this Agreement, Employee shall be entitled to one (1)
year’s salary, and any option held by Employee which is unvested on the date of
termination shall immediately vest. “A controlling interest” shall be
defined as 50% or more of the common stock of the Company. “One (1)
year’s salary” shall be defined as only the cash compensation paid to Employee
pursuant to paragraph 2.1, as it may be modified from time to time, and shall
not include employee benefits, bonus, stock options, automobile allowance or
debt forgiveness, if any. With the exception of the covenants
contained in Paragraphs 1.3(c), 4.1 and 4.3, upon such termination the
obligations of Employee and the Company shall immediately cease.
f. Termination Without
Cause. Company is entitled to terminate the Employee’s
employment without cause for any reason; provided, however, that the Employee
shall be entitled to 30 days written notice and four months pay as severance, as
well as any accrued but unpaid compensation in lieu of any other rights or
benefits under this Agreement, to which Employee is entitled on the date of such
termination. With the exception of the covenants contained in
Paragraphs 1.3(c), 4.1 and 4.3, upon such termination the obligations of
Employee and the Company shall immediately cease.
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ARTICLE
4
ADDITIONAL
OBLIGATIONS
4.1 Non-Interference. The
Employee shall not now or in the future, either during or subsequent to the
period of the Employee’s employment, disrupt, damage, impair or interfere with
the business of the Company in any manner, including, without limitation,
inducing an employee to leave the employ of the Company or inducing an employee,
a consultant, a sales representative, or an independent contractor to sever that
person’s relationship with the Company either by interfering with or raiding the
Company’s employees or sales representatives, disrupting the relationships with
customers, agents, independent contractors, representatives or vendors, or
otherwise.
4.2 Conflicts of
Interest. If the Employee is involved, directly or indirectly,
in an activity that presents a potential or actual conflict of interest, as
determined by the Company, by virtue of the Employee’s employment or employment
relationship with the Company, the Employee shall immediately terminate such
activity, employment and/or relationship unless the Employee has the express
written permission of the Company to continue it. If the Employee has
any doubts as to whether a potential or actual conflict of interest is involved,
the Employee must disclose all pertinent facts to the Company before undertaking
the activity. The Company shall make the final decision as to whether
such a conflict or potential conflict exists in its sole and subjective
discretion.
4.3 Confidentiality. The
Employee agrees, at all times during and after the Employee’s employment
hereunder, to hold in the strictest confidence, and not to disclose to any
person, firm or corporation without the express written authorization of the
Chairman of the Board of the Company, any trade secret, such as any financial
information or any secret, proprietary, or confidential information relating to
the research and development programs, vendor and marketing programs, customers,
customers’ information, sales or business of the Company, except as such
disclosure or use may be required in connection with his work for the Company or
is published or is otherwise readily available to the public or becomes known to
the public other than by his breach of this Agreement. If it is at
any time determined that any of the information or materials identified above
are, in whole or in part, not entitled to protection as trade secrets, the
Employee and the Company agree that they shall nevertheless be considered and
treated as confidential information that is protected under this Agreement, in
the same manner as trade secrets, to the extent permitted by law.
The
Employee further agrees, upon termination of this Agreement, to promptly deliver
to the Company all notes, books, correspondence, drawings, computer storage
information, and any and all other written and graphical records in his
possession or under his control relating to the past, present or future
business, accounts, or projects of the Company.
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ARTICLE
5
MISCELLANEOUS
5.1 Entire
Agreement. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes any and all other arrangements, communications, understandings,
promises, stipulations, arrangements, whether any of the same are either oral or
in writing, or express or implied, between the parties hereto with respect to
the subject matter hereof, including, but not limited to, any implied-in-law or
implied-in-fact covenants or duties relating to employment or the termination of
employment. No change to or modification of this Agreement shall be
valid or binding unless the same shall be in writing and signed by both the
Employee and the President of the Company.
5.2 Severability. In
the event that any one or more of the provisions of this Agreement shall be held
invalid, illegal, or unenforceable, in any respect, by a court of competent
jurisdiction, the validity, legality, and enforceability of the remaining
provisions contained herein shall not in any way be affected
thereby.
5.3 Applicable
Law. This Agreement and the rights and remedies of each party
arising out of or relating to this Agreement, shall be governed by, interpreted
under and enforced under the laws of the State of California.
5.4 Counterparty. This
Agreement may be executed in counterparts, each of which shall be deemed an
original.
IN
WITNESS WHEREOF, the parties hereto acknowledge that they have read this
Agreement, fully understand it, and have freely and voluntarily entered into
it.
|
Dated:
12/2/02
|
“EMPLOYEE”
/s/Xxxxxxx Xxxxxxx
|
|
Dated:
12/18/02
|
“The
Company”
/s/Xxxx Xxxx
STAAR
Surgical Company
|
9
