Exhibit 10.1
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 Xxxx Xxxx (hereinafter the
"Employee"), located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, effective
January 3, 2002.
RECITALS
--------
A. WHEREAS, the Company wishes to retain the services of
Employee and Employee wishes to render services to Company as .
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
Chief Financial Officer, based upon the terms and conditions set forth in this
agreement.
1.2 Duties. During the term of his employment, the Employee
shall devote his full time, efforts, abilities, and energies to the Company's
business and, in particular, shall use his 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, firm 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
(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.
(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
3
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, know-how, 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.
(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, drawings, 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
4
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.
(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 therefor, 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."
5
Employee understands that be 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 $7,692.30 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 Bonus. In addition to the salary described above, the
Employee shall be eligible for an annual bonus based on 40% of annual salary,
which shall be payable on employee's anniversary date of hire and shall be
subject to the achievement of corporate milestones. Active employment on the
date of the bonus payment is a condition precedent to earning the bonus. If the
Employee is not employed by the Company on January 3, 2003, for any reason, he
will be entirely ineligible for any bonus whatsoever. No other bonuses will be
paid by the Company to Employee, unless the Company determines, in its sole and
absolute discretion, to provide additional bonus monies.
2.3 Stock Options. Company grants to Employee an option to
purchase 100,000 (100,000) shares of Company's stock. The options shall be
subject to the 0000 XXXXX Surgical Company Stock Option Plan (the "Plan"). The
options shall vest in equal increments over three years. However, the vesting
schedule may accelerate based on employee's achievement of specific goals and
objectives. The exercise price per share shall be based on the price at the
close of business on the date the offer letter of employment is signed. The
employee agrees to be bound by the terms of the Plan.
2.3 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
Employee will also be entitled to four weeks vacation time without loss of
compensation.
2.4 Business Expenses. The Company will reimburse the
Employee for reasonable business expenses such as cellular phone, mileage, and
business entertainment expenses, provided that these expenses were incurred on
Company business and provided that expense reports regarding these expenses are
submitted to the Company in a timely manner.
6
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". Cause means any of the following: (1) willful breach or
habitual neglects 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 his/her position in a competent fashion, as determined by
the 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 30 days to cure the Poor Performance. Poor Performance shall
occur if Employee has failed to meet guidelines/goals for three consecutive
months. Following the termination for Poor Performance, the Employee shall be
entitled to payment of his base salary through the last day of his 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.
c. Death. Employee's employment shall terminate upon the
death of Employee. Upon such termination, the obligations of Employee and
7
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 ninety (90) 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, Employee shall receive, in
lieu of any other rights or benefits under this Agreement, 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 90 days written notice and six
months/weeks 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.
8
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,
9
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.
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.
10
"EMPLOYEE"
DATED: 12/20/01 ___________________________
-----------
"The Company"
DATED: 1/3/02 By____________________________
----------- STAAR Surgical Company
11
