EXHIBIT 10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into on the 15
th
day of February, 2006
with an effective date of the 11 th day of April, 2006, by and between
INTRALASE CORP., a Delaware corporation (the
“Company”) and ROBERT PALMISANO (hereinafter
“Executive”).
W I T N E S
S E T H :
In consideration of the mutual
covenants and obligations herein set forth, the parties hereto
agree as follows:
1. Engagement; Nature of
Duties; Reporting . The Company has engaged Executive, for the
period hereinafter set forth, to serve as and hold the offices of
Chief Executive Officer and President of the Company, and to
perform the duties and exercise the powers of such offices as
currently provided in the Bylaws of the Company. Executive has
agreed to serve in such capacity and to continue to serve hereunder
and to do and perform the services, acts, or things necessary to
carry out the duties of such offices, and such other duties, not
inconsistent with such office and Executive’s positions as
Chief Executive Officer and President of the Company, as the
Company and Executive may mutually agree. Executive shall report
only to the Board of Directors of the Company.
2. Term .
The term of employment pursuant to
this Agreement shall be for a period of three years commencing on
the date hereof through and including April 10, 2009, unless
sooner terminated in accordance with the provisions
hereof.
3. Performance of Duties
. Executive shall devote
such time and attention to Executive’s duties as may be
reasonably necessary to perform and carry out such duties. Except
for such activities and other business dealings as do not, in the
reasonable judgement of the Board of Directors of the Company,
unreasonably interfere with the performance of Executive’s
duties hereunder, Executive’s services shall be exclusive to
the Company during the term hereof, and Executive shall not accept
any other employment or position, of any nature, without the prior
written consent of Company.
Except as otherwise provided for
herein, Executive shall perform his duties hereunder primarily in
the Company’s principal executive offices in Irvine,
California, or where otherwise relocated in Orange County, and
shall, other than customary travel incident to performance of his
duties hereunder, not be required to perform such duties at any
other location.
4. Compensation
.
(a) Base Salary . The Company
shall pay to Executive a base salary in the amount of Four Hundred
Seventy Two Thousand Five Hundred Dollars ($472,500) per year. Such
base salary shall be payable in periodic installments in accordance
with the Company’s prevailing policy for compensating
personnel, but not less often than semi-monthly. Executive’s
base salary will be reviewed and be subject to adjustment, on an
annual basis, in good faith by the Board of Directors of the
Company; provided, however, such base salary may not be reduced
without Executive’s consent.
(b) Annual Bonus . In
addition to the foregoing base salary and any and all other
compensation, profit-sharing participation, benefits, bonuses or
other amounts due to or receivable by Executive pursuant to this
Agreement or any plan or program maintained by the Company,
Executive shall be eligible to receive an annual cash bonus in an
amount of up to seventy five percent (75%) of
Executive’s then-current base salary. Such annual bonus will
be paid to Executive based upon the performance of the Company
against the goals set by the Board of Directors in advance and
agreed upon by Executive, for each fiscal year of the Company. The
foregoing bonus shall be payable within ninety (90) days
following the end of the Company’s fiscal year. In the event
that this Agreement expires or is terminated (other than a
termination by the Company for Good Cause, as defined below, or
voluntary termination by Executive) prior to the end of any fiscal
year, Executive shall be entitled to a bonus, proportional to the
annual bonus which would have been achievable by Executive for such
fiscal year, payable within sixty (60) days following the
effective date of such expiration or termination, provided the
Company’s actual performance equals or exceeds the agreed
upon goals on a year to date basis for the period from the end of
the prior fiscal year through the effective date of such expiration
or termination.
(c) Withholding . Executive
acknowledges and agrees that the Company may withhold from any
amounts payable under this Agreement any amounts required to be so
withheld pursuant to applicable state or federal law, or the
regulations of any state or federal governmental unit or taxing
authority.
5. Stock Options
. Executive shall be
eligible to receive annual option grants in accordance with the
Company’s policies and procedures. Any unvested options held
by the Executive shall vest in full and become immediately
exercisable upon a Change of Control.
6. Expense Reimbursement;
Housing; Automobile Payments .
(a) Expense Reimbursement .
The services required of Executive by this Agreement shall include
the responsibility and duty of entertaining business associates and
others with whom the Company is, desires to be, or may become
engaged in business or with whom it seeks, now or in the future, to
develop or expand business relationships, or with whom it is
otherwise to the benefit of the Company to establish or maintain
communications. It may also be necessary for Executive to travel
from time to time on behalf of and for the benefit of the Company,
or in furtherance of the Company’s business. It is
Company’s belief that the performance of the
Executive’s duties in such travel and entertainment
activities will be productive of the maximum benefits which the
Company expects to derive from Executive’s services.
Accordingly, the Company shall pay, or if Executive shall have
paid, shall reimburse to Executive, any and all expenses incurred
by him or for his account in the performance of his duties
hereunder, including all expenses for business, entertainment,
promotion, professional association dues and travel by Executive,
subject only to Executive providing appropriate documentation for
such expenses, and to any written policies of the Company regarding
executive expense reimbursement adopted and approved by the Board
of Directors.
(b) Housing . During the term
of this Agreement, the Company will pay rent for an apartment in
Orange County, California for Executive in an amount not to exceed
Four Thousand One Hundred Eighty Dollars ($4,180) per month plus
any reasonable future rent increases imposed by the landlord for
such apartment from time to time after the effective date hereof.
To the extent that such rental payments are subject to income taxes
payable by Executive, the Company shall, for each
tax year of Executive in which such
payments are made or deemed made, pay Executive an amount to
reimburse Executive for such income taxes for such tax year, on a
gross-up basis.
(c) Automobile Payments .
During the term of this Agreement, the Company shall pay on behalf
of Executive up to One Thousand Dollars ($1,000.00) per month, in
connection with Executive’s leasing or purchase of an
automobile.
7. Medical and Life Insurance;
Pension Benefits . Executive shall have the right to participate
in any and all group, life, disability income, health, dental or
accident insurance programs applicable to other executive
management personnel of the Company, and in effect at any time
during the period of Executive’s employment hereunder,
subject only to any eligibility restrictions of such programs. The
Company shall pay all premiums for Executive, and Executive’s
spouse and dependents, for full coverage under all such health
insurance programs. Executive shall also have the right to
participate in any and all employee retirement benefits plan or
profit-sharing plan which the Company maintains for its personnel,
and in effect at any time during the period of Executive’s
employment hereunder, on a basis at least as favorable as for any
other executive management personnel of the Company, subject only
to any eligibility restrictions of such plans. In the event that,
as a result of any eligibility restrictions of any such plans or
programs, Executive is not permitted to participate in any such
plan or program, then the Company shall, at Executive’s
option, provide Executive with equivalent benefits to those which
would be available to Executive under such plan or program, at the
Company’s sole cost and expense.
8. Vacation .
During each calendar year of the
term of employment as provided in Section 2 hereof, and
thereafter, so long as, Executive continues in the employment of
the Company, Executive shall be entitled to a vacation of up to
four (4) weeks, without deduction of salary. Such vacation
shall be taken at such time or times during the applicable year as
may be mutually determined by Executive and the Company. Any
additional vacation period shall be determined by the Company
consistent with the general customs and practices of the Company
applicable to its executive management personnel. Any accrued and
unused vacation as of April 1 of any year during the term
hereof may, at the discretion of Executive, either be paid in cash
or carried over to the following year; provided, however, that
Executive may not carry over more than two weeks of
vacation.
9. Termination
.
(a) Termination for Good
Cause . This Agreement may be terminated by the Company for
Good Cause. As used herein, “Good Cause” shall
mean:
1. Executive’s conviction of a
felony or similar crime causing material harm to the standing and
reputation of the Company; or
2. Executive makes an intentional
and improper disclosure of the Company’s confidential or
proprietary information in breach of Executive’s
confidentiality agreement with the Company.
(b) Termination Following Change
of Control . This Agreement may be terminated by the Company or
Executive following a Change of Control. As used herein,
“Change of Control” shall mean:
1. The sale, lease, conveyance or
other disposition of all or substantially all of the
Company’s assets as an entirety or substantially as an
entirety to any person, entity or group of persons acting in
concert; or
2. Any “person” (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended), other than any currently existing
shareholder, becoming the “beneficial owner” (as
defined in Rule 13d-3 under said act), directly or indirectly,
of
