EXHIBIT 10.62
RESIGNATION AGREEMENT AND GENERAL RELEASE
This Resignation Agreement (the "Agreement") is entered into by and
between Xxxxxxx X. Xxxxxx ("Xxxxxx") on the one hand, and Luminent, Inc.
("Luminent") and MRV Communications, Inc. ("MRV") (MRV and Luminent are
sometimes hereafter referred to as the "Companies") on the other hand, with
reference to the following facts:
A. On or about July 11, 2000, Xxxxxx entered into a four (4) year employment
agreement with Luminent and MRV. On or about July 26, 2001, Xxxxxx entered into
an amendment to said agreement with Luminent and MRV (the employment agreement
and amendment thereto are collectively referred to as the "Employment
Agreement"). Under the Employment Agreement, Xxxxxx agreed to serve as President
and Chief Executive Officer of Luminent, and serve on the Board of Directors of
Luminent during the term of his employment.
B. The Board of Directors of Luminent has decided to remove Xxxxxx from his
employment positions and his Board of Director position pursuant to the "other
than for Cause" provisions of the Employment Agreement.
X. Xxxxxx desires to resign rather than be removed by the Board of Directors,
and in exchange for such resignation, desires the severance pay and benefits set
forth in Exhibit A attached hereto.
Now, therefore, in exchange for the promises set forth below, the
parties hereby agree as follows:
1. RESIGNATION: Xxxxxx hereby voluntarily resigns his position as President and
Chief Executive Officer of Luminent. Xxxxxx also resigns his position as a
member of the Board of Directors of Luminent. Both resignations are effective
immediately. Luminent and MRV hereby affirm and acknowledge that Xxxxxx'x
resignation is not a breach of the Agreement, and shall be treated as a
termination "other than for Cause" under the Employment Agreement.
2. RELEASE OF LUMINENT AND MRV: Xxxxxx does hereby forever waive, release and
discharge Luminent and MRV, including but not limited to their parent
corporation(s), subsidiaries, shareholders, officers, employees, agents,
attorneys, successors and assigns (hereinafter, the "Released Parties") from any
and all claims, causes of action, damages, liabilities or demands, of whatever
kind or nature, whether known or unknown, including but not limited to contract,
discrimination, fraud or tort claims, which Xxxxxx now has or holds, or at any
time has held, against the Released Parties, except as otherwise expressly
provided in this Agreement (including Exhibit A).
3. RELEASE OF XXXXXX: Luminent and MRV do hereby forever waive, release and
discharge Xxxxxx, including but not limited to his heirs, representatives,
successors and assigns, from any and all claims, causes of action, damages,
liabilities or demands, of whatever kind or nature, whether known or unknown,
which Luminent or MRV now has or holds, or at any time has held, against Xxxxxx,
except as otherwise expressly provided in this Agreement. The releases contained
in this paragraph do not apply to any cause of action the Companies may have
against Xxxxxx for theft, embezzlement or fraud. (The Companies' respective
Boards of Directors are not presently aware of any such claims.)
4. WAIVER OF UNKNOWN CLAIMS: The Parties acknowledge that this is a full and
final release, and that each intends and expressly agrees that it shall be
effective as a bar to each and every claim, demand and cause of action that
Xxxxxx has against the Companies as of the date of this Agreement, or that the
Companies have against Xxxxxx as of the date of this Agreement, subject to the
exceptions recited herein. Subject to the limited exceptions set forth in
paragraphs 2 and 3 above, the parties also expressly waive any and all rights
and benefits conferred upon them now or in the future under the terms of
California Civil Code section 1542, which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing
the release, which, if known by him, must have materially affected his
settlement with the debtor."
5. NON-DISPARAGEMENT AND CONFIDENTIALITY: Xxxxxx agrees to keep the terms,
amount and the fact of this Agreement completely confidential, and will not
disclose the terms or provisions of this Agreement to any person or entity,
except to his family members or professional representatives, or as otherwise
required by law. Both Xxxxxx and the Companies agree that they will do nothing
to disparage the other in any communications after the date of this Agreement.
Date: 9/12/01 /s/ Xxxxxxx X. Xxxxxx Date: 9/12/01 LUMINENT, INC.
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Xxxxxxx X. Xxxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx, Chairman
Date: 9/12/01 MRV COMMUNICATIONS, INC.
-------
/s/ Xxxx Xxxxx
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Xxxx Xxxxx, President
APPENDIX A
TO THE RESIGNATION AGREEMENT AND GENERAL RELEASE BY AND BETWEEN
XXXXXXX X. XXXXXX ("XXXXXX"), LUMINENT, INC. ("LUMINENT") AND
MRV COMMUNICATIONS, INC. ("MRV")
(THE "AGREEMENT")
1. MRV and Luminent will pay Xxxxxx severance benefits in cash totaling
$900,000, to be paid in twenty four equal installments of $37,500 each
beginning on or about October 1, 2001, in accordance with the payroll
cycles of Luminent and MRV and continuing through September, 2002.
2. MRV will fully vest all "MRV Options" (as defined in the Employment
Agreement between Xxxxxx, MRV and Luminent dated July 11, 2000, as amended
on or about July 26, 2000, the "Employment Agreement") as of September 12,
2001, the effective date of the Agreement (the "Effective Date"), and the
MRV Options will remain exercisable until September 11, 2003 (two years
from the Effective Date).
3. Luminent will fully vest all "Company Options" (as defined in the
Employment Agreement") and the Company Options will remain exercisable
until September 11, 2003.
4. Prior to or coincident with the completion of any merger between Luminent
and MRV or any other extraordinary event affecting shares of Luminent,
Luminent and MRV will replace the Company Options with options to purchase
shares of MRV or another company, and such replacement options will remain
exercisable until at least September 11, 2003 and will be on such terms as
are the most favorable provided to any other holder of options to purchase
shares of Luminent.
5. Luminent or MRV will pay Xxxxxx the sum of (a) all amounts which he has
accrued as salary and vacation pay under the Employment Agreement and (b)
all reasonable expenses which he has incurred in furtherance of or in
connection with the performance of his duties under the Employment
Agreement and which remain unpaid as of the Effective Date in cash by
September 19, 2001.
6. MRV shall seek to name Xxxxxx as an insured under the policy issued to MRV
for director and officer liability coverage that is in effect as of the
Effective Date that provides the most extensive coverage to directors and
officers of MRV ("D & O Coverage") beginning as of the Effective Date and
continuing in effect until September 11, 2007 (six years from the
Effective Date), and in any event, shall provide Xxxxxx with insurance
coverage at least as favorable as that provided to any other former
Director of Luminent and to any other former senior executive of Luminent
(both before and after any merger between Luminent and MRV or any other
extraordinary event affecting shares of Luminent).
7. The waiver and release made by Xxxxxx of MRV and Luminent shall not
include the items listed in paragraphs (1) through (6) above, and shall
also not include the following items: (a) Xxxxxx'x rights under all
employee benefit plans maintained by Luminent, including Xxxxxx'x rights
to coverage under the Consolidated Omnibus Budget Reconciliation Act of
1986, as amended ("COBRA"); and (b) Xxxxxx'x rights to indemnification as
provided for in the articles of incorporation of Luminent, the by-laws of
Luminent, and any other agreements of Luminent or
MRV for his acts as an employee, officer and Director of Luminent on behalf
of Luminent.
MRV COMMUNICATIONS, INC.
By: /s/ XXXX XXXXX
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Title: Xxxx Xxxxx, President
Date: September 12, 2001
LUMINENT, INC.
By: /s/ XXXX XXXXX
--------------------------------------
Title: Xxxx Xxxxx, Chairman
Date: September 12, 2001
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Date: September 12, 2001
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