**EXHIBIT 10.36**

 

**INTRALASE CORP.**

 

**CHANGE OF CONTROL SEVERANCE AGREEMENT**

 

This agreement is entered into between IntraLase Corp (the “Company,” which term shall include any successor by merger, consolidation, sale ofsubstantially all of the Company’s assets or otherwise) and James Lightman (“Executive”) effective as of the fourteenth day of February, 2005 (“Effective Date”). 

 

**1.1 Definitions**

 

“Cause” means (a) willful malfeasance or gross negligence in the performance by Executive of his duties, resulting in harm to the Company, (b)fraud or dishonesty by Executive with respect to the Company, or (c) Executive’s conviction of any felony. The Company may treat a termination of Executive’s employment as termination for Cause only after (i) giving Executive writtennotice of the intention to terminate for Cause and of his right to a hearing and (ii) at least (15) fifteen days after giving the notice, conducting a hearing at which Executive may be represented by counsel. Executive may be suspended with payduring the notice period. 

 

“Change of Control” isdefined in **Exhibit A**. 

 

“Good Reason”means, following a Change of Control, (i) failure by the Company to maintain Executive in at least the position he occupies on the date of this Agreement or assignment to Executive duties materially inconsistent with such positions, (ii) failure bythe Company to provide Executive with compensation benefits he is receiving on the date of this Agreement, or as they may hereafter be increased, other than in connection with a Company-wide reduction of compensation and benefits, (iii) breach bythe Company of any material provision of this Agreement, (iv) relocation of Executive’s principal place of work to a location more than (50) fifty miles from it’s location immediately prior to the Change of Control or (v) any materialreduction in Executive’s duties, responsibilities or authority or any other action that has the effect of a demotion of the Executive. To the extent the Change of Control results in the Company (or a successor to the Company by merger,consolidation or the like), continuing in existence as a direct or indirect subsidiary of an acquirer, the Executive shall be considered to have been demoted unless given the same position, duties and authority in the ultimate parent of theacquirer. By way of example, the Chief Executive Officer, Chief Financial Officer or Chief Legal Officer of a public company would be considered to have reduced duties, responsibility and authority, and hence to have been demoted if, as a result ofthe Change of Control, such Executive did not have the same role in the ultimate parent of the acquirer. 

 

**1.2 Severance Benefits in Connection With a Change of Control or By Executive for Good Reason**

 

(a) Entitlement to Severance Benefits. If, during theperiod following the commencement of efforts to sell the Company and prior to a Change of Control or twelve months following or otherwise in connection with a Change of Control, the Company terminates Executive’s employment without Cause, or ifExecutive terminates his employment for Good Reason, the Company will, subject to Section 2 below, provide severance benefits to Executive as set forth below in this Section 1.2. Further, in the event the Executive’s employment is terminatedwithout Cause or is terminated by Executive for Good Reason other than in connection with a Change of Control, as 

described above in this section 1.2(a), the Company will provide severance benefits to Executive as set forth in this agreement except that the applicablepercentage in section 1.2(b)(i), below, will be reduced to 100% and will be limited to base salary only, with no payment of unearned bonus. 

 

(b) Severance Benefits. The Company will provide severance benefits as follows: 

 

(i) The Company will pay to Executive within (30) thirtydays of the termination a lump-sum cash amount equal to two hundred percent (200%) of the sum of (a) Executive’s then current annual base salary in effect immediately prior to the termination (or, if his base salary has been reduced within (60)sixty days prior to the termination or at any time after the Change of Control, his base salary in effect prior to the reduction), plus (b) the Executive’s target bonus for the current year or for the year immediately prior to the Change ofControl whichever is higher; provided that the Executive may in the alternative and in his sole discretion elect to have such payment made in: 

 

(A) equal monthly installments with interest at a rate of 7% per annum over a period not to exceed two (2) years, 

 

(B) a lump sum to the IntraLase Corp. Non-QualifiedDeferred Compensation Plan (“Compensation Plan”) or 

 

(C) equal monthly installments as in (A) above with the percentage withheld monthly as Executive has had withheld before the termination to the Compensation Plan. 

 

The foregoing payments are in addition to and not in lieu of salary and bonus for the currentyear that has been earned but not yet paid. If current year target bonus is tied, in whole or in part, to annualized performance benchmarks, it will be equitably prorated. 

 

(ii) The Company will continue to provide Executive, for a period of two years from the date of terminationor commencement of new employment providing substantially similar benefits, whichever is earlier, with any medical, dental, disability, life insurance and automobile reimbursement benefits and other perquisites in effect at the time of termination(or, if the level of benefits has been reduced within (60) sixty days prior to the termination, the level of benefits prior to the reduction). To the extent the Company is unable to provide such benefits to Executive under its existing plans andarrangements, it will either arrange to provide Executive with substantially similar benefits upon comparable terms or pay Executive cash amounts equal to the Company’s most recent annualized cost of providing such benefits. Following such twoyears of payment of benefits, the Company shall permit Executive to elect to continue the medical and dental benefits under COBRA, which election shall be made at the time of termination and paid by the Company for the period provided herein.

 

(iii) The Company will make reasonable andcustomary outplacement services available to Executive for a period of one year from the date of termination. 

 

(iv) To the extent not otherwise provided for under the Company’s stock plans, all options to purchase Company stock held byExecutive will become exercisable and remain exercisable for the period of time set forth in the instruments governing such options, and to the 

 

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extent not otherwise provided for under the Company’s stock plans, the vesting of all such restricted stock shall be governed by the express terms inthe agreements entered into between the Executive and the Company. 

 

(v) The Company shall continue to manage the Compensation Plan during the full period that Executive has elected to receive benefits under such plan. An election to commence payments thereunder upon retirement shallbe Executive’s retirement from full-time employment with any employer or age 65, whichever is earlier. 

 

**2. Additional Severance Benefits**

 

In the event that it is determined that any payment or benefit provided by the Company to or for the benefit of Executive, either under this Agreement orotherwise, will be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any successor provision (“Section 4999”), the Company will, prior to the date on which any amount of the excise tax must be paid orwithheld, make an additional lump-sum payment (the “gross-up payment”) to Executive. The gross-up payment will be sufficient, after giving effect to all federal, state and other taxes and charges with respect to the gross-up payment, tomake Executive whole for all taxes (including withholding taxes) imposed under Section 4999. 

 

Determinations under this section 2 will be made by the Company’s then current firm of independent auditors (the “Firm”). The determinations of the Firm will be binding upon the Company and theExecutive except as the determinations are established in resolution (including by settlement) of a controversy with the Internal Revenue Service to have been incorrect. All fees and expenses of the Firm will be paid by the Company. 

 

If the Internal Revenue Service asserts a claim that, if successful, wouldrequire the Company to make a gross-up payment or additional gross-up payment, the Company and Executive will cooperate fully in resolving the controversy with the Internal Revenue Service. The Company will make or advance such gross-up payments asare necessary to prevent Executive from having to bear the cost of payments made to the Internal Revenue Service in the course of, or as a result of, the controversy. The Firm will determine the amount of such gross-up payments or advances and willdetermine after resolution of the controversy whether any advances must be returned by Executive to the Company. The Company will bear all expenses of the controversy and will gross Executive up for any additional taxes that may be imposed uponExecutive as a result of payment of such expenses. 

 

**3.Withholding**

 

All payments required to be made by Company toExecutive under this Agreement will be subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as may be required by law. 

 

**4. Arbitration**

 

Any dispute or controversy between the parties involving the construction or application of any terms, covenants or conditions of this Agreement, or anyclaim arising out of or relating to this Agreement, or any claim arising out of or relating to Executive’s employment by the Company that is not resolved within (10) ten days by the parties will be settled by arbitration in the City of Irvine,

 

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California, in accordance with the rules of the American Arbitration Association then in effect, and judgment upon the award rendered by the arbitrator(s)may be entered in any court having jurisdiction thereof. The Company and Executive agree that arbitrator(s) will have no authority to award punitive or exemplary damages or so-called consequential or remote damages such as damages for emotionaldistress. Any decision of the arbitrator(s) will be final and binding upon the parties. Either party may request that the arbitrator(s) submit written findings of fact and conclusions of law. The parties agree and understand that they hereby waivetheir rights to a jury trial of any dispute or controversy relating to the matters specified above in this Section 4. The Company will pay the cost of any such arbitration. 

 

**5. No Duty to Mitigate**

 

Benefits payable under this Agreement as a result of termination of Executive’s employment will be considered severance pay in consideration of hispast service and his continued service from the effective date of the Change of Control, and his entitlement thereto will neither be governed by any duty to mitigate his damages by seeking further employment nor offset by any compensation that hemay receive from other employment (except as specifically provided in Section 1.2 (b)(ii), above with respect to cessation of health insurance and similar benefits upon commencement of new employment). 

 

**6. Rights of Survivors**

 

If Executive dies after becoming entitled to benefits under Sections 1.2 and2 following termination of employment but before all such benefits have been provided, (a) all unpaid cash amounts will be paid to the beneficiary that has been designated by Executive in writing (the “beneficiary”), or if none, toExecutive’s estate, (b) all applicable insurance coverage will be provided to Executive’s family as though Executive had continued to live, and (c) any stock options that become exercisable will be exercisable by the beneficiary, or ifnone, the Estate. 

 

**7. Successors**

 

This Agreement will inure to and be binding upon the Company’ssuccessors. The Company will require any successor to all or substantially all of the business and assets of the Company by sale, merger or consolidation (where the Company is not the surviving corporation), lease or otherwise, by agreement in formand substance satisfactory to Executive, to assume this Agreement expressly. This Agreement is not otherwise assignable by the Company or by the Executive. 

 

**8. Subsidiaries**

 

For purposes of this Agreement, employment by a corporation or other entity that is controlled directly or indirectly by the Company will be deemed to beemployment by the Company. Thus, references in the Agreement to “Company” include such corporations or other entities where appropriate in the context. 

 

**9. Amendment or Modification; Waiver**

 

This Agreement may not be amended unless agreed to in writing by Executive and the Company. No waiver by either party of anybreach of this Agreement will be deemed a waiver of a subsequent breach. 

 

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**10. Severability**

 

In the event that any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisionsshall remain in full force and effect to the fullest extent permitted by law. 

 

**11. Controlling Law**

 

This Agreement will be controlled and interpreted pursuant to California law. 

 

**12. Notices**

 

Any noticesrequired or permitted to be sent under this Agreement are to be delivered by hand or mailed by registered or certified mail, return receipt requested, and addressed as follows: 

 

If to the Company: 

 

IntraLase Corp. 

3 Morgan 

Irvine CA, 92618 

 

If to Executive: 

 

James Lightman 

IntraLase Corp. 

3 Morgan 

Irvine, CA 92618 

 

Either party may change its address for receiving notices by giving to theother party. 

 

**13. Conflict**

 

In the event of a conflict between this Agreement and the provisions of anyother compensation or benefit arrangement between the Company and Executive, this Agreement shall prevail. 

 

**[Signature Page Follows]**

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.

 
**EXECUTIVE**
/s/ James Lightman

James Lightman

 

 

**INTRALASE CORP.**

/s/ Robert J. Palmisano

By: Robert Palmisano

Title: Chief ExecutiveOfficer

 

 

**Exhibit “A”**

 

“Change of Control” means the occurrence of any one or more of the following events following the completion ofthe sale of the Common Stock of the Company to the public pursuant to a registration statement filed with the Securities and Exchange Commission: 

 

(1) Any Person becomes the owner of 50% or more of the Company’s Common Stock; or 

 

(2) Individuals who, as of the Effective Date, constitute the Board of Directors of the Company (the “ContinuingDirectors”) cease for any reason to constitute at least a majority of such Board; provided, however, that any individual becoming a director after the Effective Date whose election or nomination for election by the Company’sshareholders, was approved by a vote of at least a majority of the Continuing Directors will be considered as though such individual were a Continuing Director, but excluding for this purpose any such individual whose initial assumption of officeoccurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”) or other actual or threatenedsolicitation of proxies or consents by or on behalf of a Person other than the Board. 

 

(3) A reorganization, merger, consolidation or similar transaction that will result in the transfer of ownership of more than 50% of the Company’s outstanding Common Stock or that will result in the issuance ofnew shares of Company Common Stock in an amount equal to more than 50% of the amount of Common Stock outstanding immediately prior to such issuance; or 

 

(4) Liquidation or dissolution of the Company or sale of substantially all of the Company’s assets. 

 

In addition, for purposes of this definition, the following terms have themeanings set forth below: 

 

“Common Stock” means thethen outstanding Common Stock of the Company plus, for purposes of determining the stock ownership of any Person, the number of shares of Common Stock which such Person has the right to acquire (whether such right is exercisable immediately or onlyafter the passage of time) upon the exercise of conversion rights, exchange rights, warrants or options or otherwise. Notwithstanding the foregoing, the term Common Stock does not include shares of preferred stock or convertible debt or options orwarrants to acquire shares of common Stock (including any shares of Common Stock issued or issuable upon the conversion or exercise thereof) to the extent that the Board expressly so determines in any future transaction. A Person will be deemed tobe the “owner” of any Common Stock of which such Person would be the “beneficial owner” as such term is defined in rule 13d-3 promulgated under the Exchange Act. 

 

“Confidential Information” means any and all information of the Company and its Affiliates that is not generallyavailable to the public. Confidential Information also includes any information received by the Company or any of its Affiliates from any Person with any understanding, express or implied, that it will not be disclosed. Confidential Information doesnot include information that enters the public domain, other than through your breach of your obligations under this Agreement. 

 

Exhibit A-1 

An “Executive Related Party” means any affiliate or associate of you other than the Company ora subsidiary of the Company. The terms “affiliate” and “associate” have the meanings given in Rule 12b-2 under the Exchange Act; the term “registrant” in the definition of “associate” means, in this case, theCompany. 

 

“Person” means an individual, acorporation, a limited liability company, an association, a partnership, an estate, a trust or any other entity or organization, other than the Company or any of its Affiliates. 

 

Exhibit A-2