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Exhibit 10.33
EMPLOYMENT AGREEMENT
This Employment Agreement is effective as of December 15, 2002,
between
Intraop Medical, Inc. ("Employer") and Howard Solovei
("Employee").
RECITALS:
A. Employer desires to obtain the association and services of
Employee in
order to utilize the skills and abilities of Employee and is
therefore willing
to engage Employee's services on the terms and conditions set
forth below.
B. Employee desires to become associated with Employer and
obtain the
benefits of such association and is willing to do so on the
following terms and
conditions.
AGREEMENT:
In consideration of the above recitals and of the mutual
promises and
conditions in the Agreement, it is agreed as follows:
1. Term. Employer agrees to employ Employee and Employee hereby
accepts
such employment, in accordance with the terms of this Agreement,
commencing
January 6, 2003 and ending December 31, 2005, unless this
Agreement is earlier
terminated as provided herein. Provided, however, that unless
Employer or
Employee gives notice to the other party to the contrary at
least 60 days prior
to December 31 of each year beginning December 31, 2005, the
term of this
Agreement shall automatically be extended for an additional term
of one year
from its then termination date.
2. Compensation and Benefits.
a. Employer shall pay Employee an initial salary at the rate
of
$135,000 per year, payable semi-monthly. The Board of Directors
shall review
Employee's salary and benefits then being paid to Employee not
less frequently
than every twelve (12) months. Following such review, Employer
may, in its
discretion increase (but shall not be required to increase) the
salary or any
other benefits of Employee. In addition, Employer may provide
additional
incentive bonuses to Employee at certain levels of productivity
or
profitability, to be determined at the sole discretion of
Employer's Board of
Directors.
b. During the term of employment, Employee shall be entitled to
receive
all benefits of employment generally available to Employer's
other executive and
managerial employees when and as he becomes eligible for them,
such as sick
leave, participation in the Company's 401(k) retirement program
or executive
retirement program, when established, and stock options and
executive
performance bonus programs when they are established by the
Board of Directors.
In regard to group health insurance benefits, Employee will be
eligible to
receive health and dental benefits for both the Employee and his
family.
Employer will purchase a life term life policy covering Employee
and made
payable to an Employee designated beneficiary in the amount of
$750,000. In the
event of employee's termination, Employee may elect to continue
the policy at
Employee's own expense.
<PAGE>
c. During the term of this Agreement, to the extent that
such
expenditures satisfy the criteria under the Internal Revenue
Code for
deductibility by Employer (whether or not fully deductible by
Employer) for
federal income tax purposes as ordinary and necessary business
expenses,
Employer shall reimburse Employee for reasonable out-of-pocket
expenses incurred
in connection with Employer's business during the employment
term, including
travel expenses, food and lodging while away from home, subject
to such policies
as Employer may from time to time reasonably establish. Such
expenses shall be
reimbursed only if Employee furnishes to Employer adequate
records and other
documentary evidence required by federal and state statutes and
regulations
issued by the appropriate taxing authorities for the
substantiation of each such
expenditure as an income tax deduction.
d. Employer reserves the right to modify, suspend or discontinue
any
and all of the above referenced benefit plans, practices,
policies and programs
at any time, whether before or after termination of employment,
without notice
to or recourse by Employee, so long as such action is taken
generally with
respect to other similarly situated employees and does not
single out Employee.
e. Employee shall be entitled to attend Employer's Board of
Directors
meetings as an observer except when Employee's compensation
matters are being
considered.
f. Subject to continuing Employer approval, Employee shall be
entitled
to work from his home for two days per week.
3. Incentive Stock Options. Employee shall be granted Incentive
Stock
Options on 175,000 shares of the Company's common stock at an
exercise price of
$0.80 per share. One-third (1/3) of such stock options shall be
vested
immediately, and so long as Employee is in the employ of
Employer on the date
each month that vesting occurs, the remaining stock options
shall vest ratably
each month over a three year period commencing on the date
hereof. The options
shall accelerate 12-months upon a "Change in Control" of
Employer (which shall
mean that Employer's existing shareholders as of the date of
this Agreement
shall cease to have beneficial ownership of at least 50% of
Employer's voting
shares of stock as a result of a single transaction or series of
related
transactions). In addition, Employee's stock options shall vest
entirely on a
"double-trigger" basis if following a Change of Control, either
(i) Employer's
stock option plan is not assumed by the surviving company; or
(ii) Employee is
terminated without Just Cause (as defined in Section 7(c))
during the period
beginning four (4) months prior to and ending six (6) months
after a Change of
Control.
4. Employees Responsibilities. Employee shall serve as Chief
Financial
Officer and Controller of Employer for the duration of this
Agreement. Employee
shall also perform such other comparable duties as the Board of
Directors, in
its discretion, shall determine. Employer shall report directly
to Employer's
Chief Executive Officer ("CEO") and also shall be subject to the
Board and to
such limits on Employee's authority as the Board of Directors
may from time to
time impose. Employee agrees to observe and comply with the
rules and
regulations of Employer as adopted by the CEO or Board of
Directors respecting
the performance of Employee's duties and agrees to carry out and
perform orders,
directions and policies of Employer and its Board of Directors
as they may be,
from time to time, stated either orally or in writing.
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<PAGE>
5. Prohibited Activities. Notwithstanding any other provisions
of this
Agreement, Employee shall not take any of the following actions
on behalf of
Employer without the express approval of the Board of Directors
(whether by
resolution or written consent):
a. Sell, pledge, transfer or otherwise encumber assets of
Employer.
b. Borrow money in the name of Employer.
c. Buy or lease extraordinary capital equipment in excess of
the
amounts budgeted and approved for such expenditures.
d. Sell any single capital asset of Employer having a market
value in
excess of $5,000 or a total of capital assets during any one
fiscal year having
a market value in excess of $25,000.
e. Permit any customer of Employer to become indebted to
Employer in an
amount in excess of $25,000, except as may be allowed under the
Company's
standard Terms and Conditions of Sale.
f. Terminate the services of any other officer of Employer or
hire any
replacement of any officer whose services have been
terminated.
g. Conduct himself (whether on Employer's business or not) in a
manner
which would bring substantial embarrassment, shame or ridicule
to Employer under
circumstances having a direct and adverse financial impact on
Employer, or
business as a result of the actions of Employee. This
subparagraph does not
apply to any actions undertaken by Employee based on his good
faith exercise of
reasonable sound business discretion or judgment.
6. Executive Service.
a. During his employment, Employee shall devote his full
energies,
interests, abilities and productive time to the business,
affairs and interests
of Employer and matters related thereto and shall use Employee's
best efforts to
promote Employer's interests and perform this Agreement in
accordance with
policies established by and under Employer's Board of Directors.
Employee shall
not, without the prior written consent of Employer's Board of
Directors, render
to others services of any kind for present or future
compensations, or engage in
any other activity that would materially interfere with the
performance of his
duties under this Agreement, including but not limited to acting
as a partner,
officer, director or employee or significant investor of any
other entity (an
investment of 5% or more of the outstanding capital or equity
securities of an
entity shall be deemed significant for these purposes). The
Employee shall not
serve as Director on other company boards of directors without
the written
consent of Intraop's Board of Directors.
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<PAGE>
b. Employee represents to Employer that he has no other
outstanding
commitments inconsistent with any of the terms of this Agreement
or the services
to be rendered hereby.
c. The position held by Employee assumes a "nominal" 40 hour
work week,
but both Employee and Employer recognize that the Company is a
start-up and, in
addition, that the capital medical equipment business is very
dynamic and that
to continue to be successful in this position requires spending
many additional
hours each week in the capacity of Chief Financial Officer.
Employee must use
his own judgment in managing his time to help operate and
develop the company in
Employer's best interests. This extra activity is considered
part of the job
responsibilities for which there is no additional
compensation.
d. It is recognized and agreed by both Employer and Employee
that the
specific nature of this job involves the exercise of
considerable initiative,
discretion, independent judgment and management by Employee.
Employee
acknowledges and agrees that the nature of his responsibilities
make his
position exempt from any local, federal or state overtime
requirements; Employee
further agrees not, either during or after employment with
Employer, to seek
additional compensation beyond the terms of this Agreement for
overtime claims,
except where legal grounds exist for doing so.
e. Travel is sometimes required on weekends or at night and is
to be
considered part of the job for which there is no additional
compensation.
7. Termination.
a. Upon termination of Employee's employment pursuant to the
terms of
this Agreeme
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