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Exhibit 10.19
TRANSITION AGREEMENT
THIS AGREEMENT (the "Agreement"), made as of the 9th day of July, 2000,
by and between JDS Uniphase Corporation, a Delaware corporation (the "Company"),
with its principal U.S. offices located at San Jose, California, and Xxxx
Xxxxxxxxx (the "Executive"),
WITNESSETH THAT:
WHEREAS, the Company and SDL, Inc., a Delaware corporation ("SDL"), are
parties to an Agreement and Plan of Merger (the "Merger Agreement") pursuant to
which, at the Effective Time, Merger Sub (as such items are defined in the
Merger Agreement) shall be merged with and into SDL and the separate existence
of Merger Sub shall thereupon cease, and SDL shall continue as the surviving
corporation ("SDL") as a wholly-owned subsidiary of the Company (the "Merger");
WHEREAS, in connection with and as a condition of its willingness to
consummate the Merger, the Company desires to retain the Executive as the
Executive Vice-President of the Company and Chief Operating Officer of the
Actives Group reporting to the President on the terms hereinafter set forth, and
to induce the Executive to enter into a covenant against competition and certain
other restrictive covenants intended to protect the goodwill of SDL and the
Company;
WHEREAS, the Executive has a significant financial interest in the
Merger, will be converting all of his shares in SDL (and options to acquire
shares of SDL) into Company shares and options pursuant to the Merger and wishes
to be employed by SDL in such capacity on the terms hereinafter set forth; and
WHEREAS, the Company would not have entered into the Merger Agreement or
agreed to issue shares of the Company (or options for shares of the Company) for
the Executive's SDL shares and options if the Executive had not executed this
Agreement (and, in particular, the noncompete and nonsolicitation agreement
incorporated herein);
WHEREAS, the Executive is a party to an Employment Agreement dated
October 29, 1998, and a Change of Control Agreement dated February 10, 2000
(collectively, the "Executive Agreements"').
NOW, THEREFORE, in consideration of the mutual covenants and promises
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
hereby agree as follows:
1. Assumption of Agreements. Except as noted below and as amended
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hereby, the Executive Agreements shall be assumed by the Company. All references
to SDL, Inc, or the Company in the Executive Agreements shall become the
"Company" as referenced in this Agreement.
2. Modification of Change of Control Agreement.
(a) The definition of "Good Reason" of clause (i) of Section 2(i) in
the Change of Control Agreement dated February 10, 2000 (the "Change of Control
Agreement"), shall be amended by removing the words "a material and", and
inserting in their place the word "an" and by the addition of the following at
the end thereof:
provided, however, that the changes in the Executive's status, title,
positions, responsibilities, duties and offices which occur immediately
after the Change of Control effected by JDS Uniphase Corporation shall
not constitute Good Reason; and provided further, that no payment will
be due Executive under this Agreement or the Employment Agreement solely
as a result of the Merger, as defined in the Transition Agreement
between the Executive and JDS Uniphase Corporation dated July 9, 2000
(the "Transition Agreement),
(b) The "Good Reason" definition in the Change of Control Agreement
is further amended by the addition of the following at the end thereof:
(vii) material breach of the Transition Agreement by the Company; or
(viii) a Change of Control of JDS Uniphase Corporation or of SDL
following the Merger, or
(ix) a change in Executive's reporting structure.
(c) For purposes of clarification, Executive agrees that any
severance payments paid as a result of a termination of employment during the 18
months following a Change of Control will be governed solely by the terms of the
Change of Control Agreement dated February 10, 2000 (as amended by this
Agreement) and not by the Executive's Employment Agreement.
3. Noncompete and Nonsolicitation Agreement. Executive will enter into a
noncompete and nonsolicitation agreement with the Company. This noncompete and
nonsolicitation agreement is attached as Appendix A of this Agreement, and is
incorporated herein by reference.
4. Period of Employment. Section 1 of Executive's Employment Agreement
is amended and restated in its entirety to read as follows:
The Company hereby employs the Employee as the Executive Vice President
of the Company and Chief Operating Officer of the Actives Group, with
the duties and responsibilities described in Section 2, for the
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compensation specified in Sections 3 and 4 and for the period commencing
at the Effective Time (as defined in the Agreement and Plan of Merger
between JDS Uniphase Corporation, K-2 Acquisition, Inc. and
SDL, Inc,) and ending on termination as provided in Section 5. The
Employee hereby accepts employment by the Company in such capacity, upon
the terms and conditions set forth in this Agreement.
5. Position and Duties. Section 2 of Executive's Employment Agreement is
amended and restated in its entirety to read as follows:
The Employee shall, during the term of this Agreement, devote his best
efforts and entire working time, attention and skill exclusively to the
business and affairs of SDL, provided that Employee's participation on
the board of directors of other companies and other activities Employee
currently participates in as. identified in Exhibit 1 hereto, as amended
with the consent of the Company, shall not be deemed a violation of this
provision unless such activities materially interfere with Employee's
duties hereunder, The Employee shall have duties and responsibilities
that are commensurate with his title and corporate reporting structure.
The location of employment, headquarters and travel responsibilities
will be consistent with 2(i)(iii) of the Change of Control Agreement
with the Company, dated February 10, 2000 (the "Change of Control
Agreement"), regardless of whether such Change of Control Agreement is
then in effect.
6. Compensation. Section 3 of Executive's Employment Agreement is
amended and restated in its entirety to read as follows:
For all services rendered by the Employee to the Company and for all
obligations assumed by him pursuant to this Agreement, the Company
shall, subject to the Employee's performance of such obligations, pay to
the Employee the compensation set forth in this Section 3 and provide
the other benefits set forth in this Agreement.
(a) Salary. Employee shall receive a base salary on a per annum basis
("Base Salary") equal to Three Hundred Thousand Dollars ($300,000) commencing as
of the Effective Time. The foregoing Base Salary shall be subject to annual
increases on July 1 of each year during the term of this Agreement, commencing
July 1, 2001, as determined by the Company in its sole discretion.
(b) Bonuses. Employee shall be eligible to receive a bonus each year
equal to an amount of up to one hundred percent (100%) of his Base Salary, which
bonus shall be paid to Employee on an annual basis upon his reaching the
performance goals mutually established from time to time hereafter by Employee
and the Company. Under the plan to be established, the target bonus each year
will be 50% of Employee's Base
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Salary (the "Target Bonus"), with an opportunity to earn from 0% to 200% of the
Target Bonus based on actual performance compared to the annual goals to be
established for the plan.
(c) Stock Options. Within 10 days of the Effective Time, Employee
shall be granted 135,000 nonqualified Company stock options (the "Initial
Options"). Such Initial Options will be subject to the terms of a stock option
agreement which will provide for an option term of no more than 10 years,
vesting 50% after one (1) year and 100% after two (2) years and an exercise
price equal to the fair market value of Company common stock on the date of
grant. If the employment of Employee is terminated without Cause or terminates
for Good Reason (as such terms are defined in the Employee's Change of Control
Agreement, as amended by the Transition Agreement, made as of July 9, 2000,
between Employee and JDS Uniphase Corporation (the "Transition Agreement"),
regardless of whether such Change of Control Agreement is then in effect), then
such Initial Options shall become immediately vested and exercisable. If
Employee's employment terminates for any reason, all vested Initial Options
shall remain exercisable for the remainder of their 10-year term.
Employee will also be eligible for annual grants of stock options,
consistent with SDL past practices or, if more favorable, with grants made to
other similarly situated executives of the Company.
(d) Outstanding Stock Options. Notwithstanding anything to the
contrary, in the event that Employee's employment with the Company is terminated
without Cause or for Good Reason (as such terms are defined in the Change of
Control Agreement, as amended by the Transition Agreement, regardless of whether
such Change of Control Agreement is then in effect), or in the event of the
Employee's death, disability or retirement at or after age 55, all unvested
stock options granted to the Employee before the Effective Time (the "Prior
Options") shall become immediately vested and exercisable, and, together with
all vested stock options granted before the Effective Time, may be exercised for
the balance of the full remaining life of the options (i.e., full 10-year term).
(e) For purposes of clarification, if Executive's employment
terminates for Cause or without Good Reason, then all vested Initial Options and
all vested Prior Options shall remain exercisable for the remainder of their
10-year terms; however, unvested options shall not accelerate and shall be
forfeited."
7. Employee Benefits. The first sentence of Section 4(a) of Executive's
Employment Agreement is amended and restated in its entirety to read its
follows:
The Company shall provide Employee with health, disability, life
insurance and other welfare benefits, vacation, stock purchase and
401(k) plans which are no less favorable than those provided to Employee
at the Effective Time, or if more favorable, under employee benefit
plans provided to similarly situated executives of the Company of
similar rank and responsibility."
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8. Additional Cash Payments.
(a) Within 10 days of the Effective Time and in consideration for
Executive accepting the terms of the attached Noncompetition and Nonsolicitation
Agreement and the amendments to the Executive Agreements, the Executive shall
receive a cash payment of $75 million.
(b) Notwithstanding anything in the Executive Agreements to the
contrary, in the event that any of the payments or benefits provided under this
Agreement or the Executive Agreements result in Executive being subject to the
golden parachute excise tax imposed by Section 4999 of the Internal Revenue
Code, the Company shall make such additional payment as will make executive
whole for such tax obligation, as set forth in Appendix B, which is incorporated
herein by reference.
9. Current Board Participation and Other Activities. Executive's
Employment Agreement is amended by the addition of Exhibit 1 hereto to become
Exhibit 1 at the end thereof.
10. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and any affiliate thereof, their respective
successors, permitted assigns and legal representatives.
11. Construction/Interpretation. The Executive acknowledges that the
Executive has been advised by the Company to review the terms of this Agreement
with legal counsel of the Executive's choice and that the Executive has been
given reasonable opportunity to seek such legal advice. The parties hereto
acknowledge and agree that: (i) each party and their counsel have (or had the
opportunity to) reviewed and negotiated the terms and provisions of this
Agreement and have contributed to its revision; (ii) the rule of construction to
the effect that any ambiguities are resolved against the drafting party shall
not be employed in the interpretation of this Agreement, and (iii) the terms and
provisions of this Agreement shall be construed fairly as to all parties hereto
and not in favor of or against any party, regardless of which party was
generally responsible for the preparation of this Agreement.
12. Disputes/Reimbursement of Expenses. If any contest or dispute shall
arise under this Agreement, the Employment Agreement or the Change of Control
Agreement, not withstanding any provisions thereof to the contrary, involving
termination of Executive's employment with the Company or involving the failure
or refusal of the Company to perform fully in accordance with the terms hereof,
the Company shall reimburse Executive, on a current basis, for all reasonable
legal fees and expenses, if any, incurred by Executive in connection with such
contest or dispute (regardless of the result thereof), together with interest in
an amount equal to the prime rate of Citibank N.A. from time to time in effect,
but in no event higher than the maximum legal rate permissible under applicable
law, such interest to accrue from the date the Company receives Executive's
statement for such fees and expenses through the date of payment
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thereof, regardless of whether or not Executive's claim is upheld by a court of
competent jurisdiction; provided, however, Executive shall be required to repay
any such amounts to
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the Company to the extent that a court issues a final and non-appealable order
setting forth the determination that the position, taken by Executive was
frivolous or advanced by Executive in bad faith.
In addition, the Company shall reimburse the Executive for legal and
consulting fees and expenses arising in connection with entering into this
Agreement.
13. Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and construed and enforced with the laws
of the State of California without giving effect to the conflict of laws
principle thereof.
14. Severability. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent, be declared invalid or unenforceable by a court of competent
jurisdiction, the remainder of this Agreement and the application of such
provisions to other persons or circumstances shall not be affected thereby, but
rather shall be enforced to the fullest extent permitted by law.
15. Amendments to Agreement. No amendment or alteration of the terms of
this Agreement shall be valid or binding unless made in writing signed by
parties to this Agreement specifically referring to this Agreement.
16. Voiding Agreement. This Agreement will be null and void and given no
effect if the Merger contemplated by this Agreement is not consummated.
17. Integration. The parties understand and agrees that this Agreement,
along with the Executive Agreements, represent the entire agreement between the
parties; that no representation or promise has been made by the Company
concerning the subject matter of those agreements, except as expressly set forth
in those agreements; and that all agreements and understandings between the
parties concerning the subject matter of those agreements are embodied and
expressed in those agreements. This Agreement and the Executive Agreements shall
supercede all prior or contemporaneous agreements and understandings between
Executive and the Company, whether written or oral, expressed or implied, with
respect to the subject matter of those agreements.
IN WITNESS WHEREOF, the parties have executed this Agreement, under
seal, as of the date first above written.
EXECUTIVE: JDS UNIPHASE CORPORATION:
By: /s/ XXXX XXXXXXXXX By: /s/ XXXXXXX XXXXXXXX
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Xxxx Xxxxxxxxx Senior Vice President
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Appendix A
Noncompetition and Nonsolicitation Agreement
A. Non-Competition.
(a) During the Executive's employment by, or relationship with, the
Company and for a period of one (1) year following the Effective Time of the
Merger, the Executive will not directly or indirectly, either as principal,
agent, employee, consultant, officer, director, or stockholder of the Company,
engage in any business which is competitive with the photonics or optics
networking businesses of SDL or the Company (collectively, the "Business"),
provided, however, that nothing contained herein shall preclude the Executive
from purchasing or owning less than five percent (5%) of the stock or other
securities of (i) any company with securities traded on a nationally recognized
securities exchange or (ii) any venture capital fund passive interest;
(b) For the purposes of this Section A, a business will be deemed
competitive with the Business if it involves the performing of services and/or
the production, manufacture, distribution, sale or development of any product
similar to services performed or products produced, manufactured, distributed,
sold or developed or being developed by the Business and/or the licensing of any
process or technology concerning production similar to those utilized, developed
or being developed by the Business during the period in which the Executive is
employed or otherwise affiliated with the Company.
(c) The Executive acknowledges that the Business has been and will be
conducted an a global basis by SDL and the Company, and that, accordingly, time
restrictions contained in this Section A shall apply in, (i) any city, county or
other political subdivision of the State of California (including, without
limitation, the counties listed on Exhibit 2 hereto), and (ii) any city, county
or other political subdivision of any other state in the United States or any
country or other territory in the world, where the Company is selling or
delivering any of the Business' products or services or is otherwise carrying on
business or selling activities with respect to the Business or (y) has engaged
in any of the activities described in clause (x) within the most recent 12-month
period.
(d) The Executive acknowledges and agrees that strict enforcement of
the terms of this Agreement is necessary for the purpose of ensuring the
preservation, protection and continuity of the business, trade secrets and
goodwill of the Company and that, in furtherance of such purpose, the
prohibition against competition imposed by this Section A is narrow, reasonable
and fair. The Executive further agrees that, given the Executive's experience,
knowledge and skills, substantial opportunities for employment outside of the
areas restricted by this Agreement are and will remain available to the
Executive. If any part of this Section A should be determined by a court of
competent jurisdiction to be unreasonable in duration, geographic area, or
scope, then this Agreement is intended to and shall extend only for such period
of time, in such area and with respect to such activities as are determined to
be reasonable.
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(e) Notwithstanding anything contained in this Section A to the
contrary, the Executive shall be permitted to serve as a director of, or an
investor in, each of the corporations set forth on Exhibit 1, which may be
amended from time to time by the mutual consent of the Executive and the
Company.
B. Non-Solicitation.
During the Executive's employment or relationship with the Company and
for a period of one (1) year following the Effective Time, the Executive will
not directly or indirectly, either as principal, agent, employee, consultant,
officer, director or stockholder, solicit any employee, consultant, independent
contractor or agent of the Business with the intention or effect of encouraging
such party to terminate his or her employment, agency or other relationship, as
applicable, with the Business.
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EXHIBIT 1
ADVISOR - GLOBAL CATALYST PARTNERS
ADVISOR - SPROUT GROUP
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EXHIBIT 2
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California Counties
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Alameda Placer
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Alpine Plumas
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Xxxxxx Riverside
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Butt Sacramento
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Calaveras San Xxxxxx
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Colusa San Bernardino
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Contra Costa San Diego
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Del Norte San Francisco
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El Dorado San Xxxxxxx
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Fresno San Xxxx Obispo
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Xxxxx San Mateo
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Humboldt Santa Xxxxxxx
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Imperial Santa Xxxxx
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Inyo Santa Xxxx
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Xxxx Xxxxxx
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Kings Sierra
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Lake Siskiyou
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Lassen Solano
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Los Angeles Sonoma
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Madera Stanislaus
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Xxxxx Xxxxxx
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Mariposa Tehama
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Mendocino Trinity
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Merced Tulare
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Modoc Tuolumne
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Mono Ventura
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Monterey Yolo
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Napa Yuba
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Nevada
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Orange
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Xxxxxxxx X
A. Certain Additional Payments by the Company
(a) Anything in this Agreement or the Executive Agreements to the
contrary notwithstanding, in the event it shall be determined that any payment,
award, benefit or distribution (or any acceleration of any payment, award,
benefit or distribution) by the Company (or any of its affiliated entities) or
any entity which effectuates a Change of Control (or any of its affiliated
entities) to or for the benefit of Executive (whether pursuant to the terms of
this Agreement or otherwise, but determined without regard to any additional
payments required under this Appendix B) (the "Payments") would be subject to
the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any interest or penalties are incurred by Executive
with respect to such excise tax (such excise tax together with any such interest
and penalties, are hereinafter collectively referred to as the "Excise Tax"),
then the Company shall pay to Executive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by Executive of all taxes
(including any Excise Tax) imposed upon the Gross-Up Payment, Executive retains
an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed
upon the Payments and (y) the product of any deductions disallowed because of
the inclusion of the Gross-up Payment in Executive's adjusted gross income and
the highest applicable marginal rate of federal income taxation for the calendar
year in which the Gross-up Payment is to be made. For purposes of determining
the amount of the Gross-up Payment, the Executive shall be deemed to (i) pay
federal income taxes at the highest marginal rates of federal income taxation
for the calendar year in which the Gross-up Payment is to be made, (ii) pay
applicable state and local income taxes at the highest marginal rate of taxation
for the calendar year in which the Gross-up Payment is to be made, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes and (iii) have otherwise allowable deductions for
federal income tax purposes at least equal to those which could be disallowed
because of the inclusion of the Gross-up Payment in the Executive's adjusted
gross income. Notwithstanding the foregoing provisions of this Appendix B(a), if
it shall be determined that Executive is entitled to a Gross-Up Payment, but
that the Payments would not be subject to the Excise Tax if the Payments were
reduced by an amount that is less than 10% of the portion of the Payments that
would be treated as "parachute payments" under Section 280G of the Code, then
the amounts payable to Executive under this Agreement shall be reduced (but not
below zero) to the maximum amount that could be paid to Executive without giving
rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be
made to Executive. The reduction of the amounts payable hereunder, if
applicable, shall be made by reducing any cash payments, unless an alternative
method of reduction is elected by Executive. For purposes of reducing the
Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and
no other Payments) shall be reduced. If the reduction of the amounts payable
hereunder would not result in a reduction of the Payments to the Safe Harbor
Cap, no amounts payable under this Agreement shall be reduced pursuant to this
provision.
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(b) Subject to the provisions of this Appendix B (a), all
determinations required to be made under this Appendix B, including whether and
when a Gross-Up Payment is required, the amount of such Gross-Up Payment, the
reduction of the Payments to the Safe Harbor Cap and the assumptions to be
utilized in arriving at such determinations, shall be made by the public
accounting firm that is retained by the Company as of the date immediately prior
to the Change of Control (the "Accounting firm") which shall provide detailed
supporting calculations both to the Company and Executive within fifteen (15)
business days of the receipt of notice from the Company or the Executive that
there has been a Payment, or such earlier time as is requested by the Company
(collectively, the "Determination"). In the event that the Accounting firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change of Control, Executive may appoint another nationally recognized
public accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by the Company
and the Company shall enter into any agreement requested by the Accounting Firm
in connection with the performance of the services hereunder. The Gross-up
Payment under this Appendix B with respect to any Payments shall be made no
later than thirty (30) days following such Payment. If the Accounting Firm
determines that no Excise Tax is payable by Executive, it shall furnish
Executive with a written opinion to such effect, and to the effect that failure
to report the Excise Tax, if any, on Executive's applicable federal income tax
return will not result in the imposition of a negligence or similar penalty. In
the event the Accounting Firm determines that the Payments shall be reduced to
the Safe Harbor Cap, it shall furnish Executive with a written opinion to such
effect. The Determination by the Accounting Firm shall be binding upon the
Company and Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the Determination, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment") or Gross-up Payments are made by the Company which should
not have been made ("Overpayment"), consistent with the calculations required to
be made hereunder. In the event that the Executive thereafter is required to
make payment of any Excise Tax or additional, Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment (together with interest, to the extent not already within the
Excise Tax, at the rate provided in Section 1274(b)(2)(B) of the Code) shall be
promptly paid by the Company to or for the benefit of Executive. In the event
the amount of the Gross-up Payment exceeds the amount necessary to reimburse the
Executive for his Excise Tax, the Accounting Firm shall determine the amount of
the Overpayment that has been made and any such Overpayment (together with
interest at the rate provided in Section 1274(b)(2) of the Code) shall be
promptly paid by Executive (to the extent he has received a refund if the
applicable Excise Tax has been paid to the Internal Revenue Service) to or for
the benefit of the Company. Executive shall cooperate, to the extent his
expenses are reimbursed by the Company, with any reasonable requests by the
Company in connection with any contests or disputes with the Internal Revenue
Service in connection with the Excise Tax.
