Exhibit 10.1
SEPARATION AGREEMENT
--------------------
In order to settle as fully as possible all of the known and
unknown claims described in Section 2 below that I might have against Optical
Communications Products, Inc. (Company) and all related parties, the Company and
I, Xxxx Xxx Xxxx, agree as follows:
(a) Special Benefits: In exchange for my entering into this Separation
Agreement (Agreement), the Company will provide me with a private office at the
Company's Woodland Hills headquarters and with associated telecommunication
services and administrative services including laptop computers and reasonable
cellular telephone and data services (at no charge) until the earlier of (i)
December 31, 2007; or (ii) the date that the Company ceases to be a
publicly-traded company with its headquarters in Woodland Hills. The Company may
cease providing me with these benefits prior to the occurrence of either
condition specified in clauses (i) or (ii) of the preceding sentence in its sole
discretion but, if it elects to do so, it will instead pay me $1,000 per month
for each month (prorated for any partial month) between the date it stops
providing me with those benefits and the first to occur of clause (i) or (ii).
The Company will withhold taxes and report amounts to tax authorities as it
determines it is required to do. The Company may, in its sole discretion,
continue to provide me with some or all of the benefits described in this
paragraph beyond the date that it is required to do so.
(b) Release: I release (i.e., give up) all known and unknown claims
that I presently have against the Company, its current or former owners,
parents, subsidiaries, and affiliates, and their current and former partners,
employees or agents, and any related parties (Released Parties) that relate to
my termination of employment with the Company which are alleged by me to be the
result of discrimination by the Company or any Released Party against me on the
basis of: disability, age, religion, sexual preference, national origin, or
race; except claims that the law does not permit me to waive by signing this
Agreement. For example, I am releasing all claims I might have under the Age
Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of
1964, Sections 1981 and 1983 of the Civil Rights Act of 1866, the Americans With
Disabilities Act (ADA), and similar state or local laws, such as the California
Fair Employment and Housing Act.
Except as described in the termination letter I received on November 30, 2006 (a
copy of which is attached as Appendix 1) and this Agreement, the Company shall
have no further obligation to pay me any compensation or to provide me with any
benefits relating to the termination of my employment and I shall have no rights
under the Employment Agreement between the Company and me (attached as Appendix
2). I hereby acknowledge and reaffirm my obligations under the Employment
Agreement, including under Section 7 of the Employment Agreement and my
obligations under the Proprietary Rights and Confidentiality Agreement (attached
as Exhibit A to the Employment Agreement) and acknowledge that Section 11 of the
Employment Agreement will continue to apply to me.
(c) Representations and Promises: I acknowledge and agree that:
(i) This Agreement only may be amended by a written agreement
that the Company and I sign.
(ii) My employment with the Company and the Released Parties
has ended. I have not been told that the Company or any Released Party
ever will employ me in the future. I promise not to seek employment
with them.
(iii) This Agreement is not an admission of wrongdoing by the
Company or any other Released Party.
(iv) I have not assigned or given away any of the claims I am
releasing.
(d) Arbitration. With the exception of matters arising under Section 7
of the Employment Agreement or action seeking injunctive relief, any controversy
between me and the Company and any controversy between me and any Released Party
agreeing to arbitrate such a controversy shall be settled by binding arbitration
in accordance with the then-current rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrator may be
rendered by any court having jurisdiction. The Company and I shall share the
cost of the arbitrator equally, but each shall bear our own costs and legal fees
associated with the arbitration. The location of the arbitration shall be in Los
Angeles, California.
================================================================================
BEFORE SIGNING THIS SEPARATION AGREEMENT, READ IT CAREFULLY AND, IF YOU CHOOSE,
DISCUSS IT WITH YOUR ATTORNEY AT YOUR OWN EXPENSE. TAKE AS MUCH TIME AS YOU NEED
TO CONSIDER THIS SEPARATION AGREEMENT BEFORE DECIDING WHETHER TO SIGN IT, UP TO
21 DAYS. BY SIGNING IT YOU WILL BE WAIVING YOUR KNOWN AND UNKNOWN CLAIMS.
YOU MAY REVOKE THIS SEPARATION AGREEMENT IF YOU REGRET HAVING SIGNED IT. TO DO
SO, YOU MUST DELIVER A WRITTEN NOTICE OF REVOCATION TO XXXXXX XXXX AT 0000
XXXXXX XXXXXX XXXXXXXX XXXXX, XX 00000 BEFORE SEVEN 24-HOUR PERIODS EXPIRE FROM
THE TIME YOU SIGNED IT. IF YOU REVOKE THIS SEPARATION AGREEMENT, IT WILL NOT GO
INTO EFFECT AND YOU WILL NOT RECEIVE THE SPECIAL BENEFITS DESCRIBED IN IT.
JANUARY 1, 2007 IS THE DEADLINE FOR YOU TO DELIVER A SIGNED COPY OF THIS
SEPARATION AGREEMENT TO XXXXXX XXXX AT 0000 XXXXXX XXXXXX XXXXXXXX XXXXX, XX
00000. IF YOU FAIL TO DO SO, YOU WILL NOT RECEIVE THE SPECIAL BENEFITS DESCRIBED
IN IT.
================================================================================
Executed at Woodland Hills , this 11th day of Dec , 2006
---------------- ------ ----- --
/s/ Xxxx Xxxx
--------------------------------------------------------------
Employee
Executed at Woodland Hills , this 11th day of Dec , 2006
---------------- ------ ----- --
/s/ Xxxxxx X. Xxxx
--------------------------------------------------------------
Optical Communication Products, Inc.
Appendix 1
[Termination Letter]
December 11, 2006
Xx. Xxxx Xxx Xxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Re: Termination of Employment
Dear Xx. Xxxx:
As you know, on July 26, 2006, at the request of the Board of
Directors, you resigned from your position as CEO and President of Optical
Communications Products, Inc. (Company). This action was taken by the Board to
enable the Board to elect Xx. Xxxxxx Xxxx to the position previously held by you
as CEO and President. Thus, in the context of those changes, you were
"terminated" from your position as CEO and President of the Company, for reasons
other than "cause." At that time, you agreed, at the request of the Board, to
continue to be employed by the Company, and to serve as the Company's CTO; a
position that is not comparable to that of CEO and President, but were not
entitled to any severance benefits at that time, because your employment with
the Company continued. You served in the role of CTO, for an open-ended time
period, to help the Company transition in various respects; but you did not
agree to waive your rights, deriving from your termination from the position of
President and CEO of the Company, under your existing Employment Agreement (a
copy of which is attached to the enclosed Separation Agreement as Appendix 2).
The Company continued to employ you, from that time to the present, as CTO. As
we have discussed, you and the Company have now agreed to terminate your
Employment with the Company, for reasons other than for "cause." Your last day
of Employment with the Company will be December 31, 2006.
In accordance with Section 12(e) of the Employment Agreement,
until December 31, 2007, the Company will (i) continue to pay you your current
base salary on its normally scheduled payroll dates; and (ii) provide you and
your family members with free COBRA continuation coverage in the Company's
medical, dental, and vision plans in which each of you are currently enrolled,
if any, provided that each of you remain eligible for COBRA continuation
coverage until December 31, 2007; and (iii) use commercially reasonable efforts
to continue your current OCP-provided group life insurance coverage (subject to
approval by the current provider and no material increase in cost to OCP).
Nothing in this letter or the attached agreement shall reduce any right you may
have under federal or state law to continue your group insurance coverage beyond
December 31, 2007 at your own expense.
Although your employment with the Company will end on December
31, 2006, the parties to this agreement understand that you may wish to continue
to serve as a member of the Company's Board of Directors (Board), and that you
wish your name to remain on the slate of Director candidates that will be
provided to the Company's shareholders in the proxy statement and ballot for the
upcoming Company shareholders meeting. Subsequent to your termination of
employment, and as long as you continues, thereafter, to serve as a duly elected
member of the Board, you will be a non-executive member of the Board; but, as a
consequence of current SEC rules and regulations, you will not qualify to be an
"independent" Director, for a period of five (5) years, because of your prior
employment as a Company executive. You will continue to serve as Board-elected
Chairman until such time as: you voluntarily resign your Chairmanship or are
prevented from serving as Chairman because of your death or other incapacity,
the Board elects a different Chairman, or you are not duly elected to membership
on the Board by the Company's shareholders, or you resign from membership on the
Board.
In addition, in exchange for your signing (by January 1, 2007)
and not properly revoking the enclosed Separation Agreement, which releases
certain claims against the Company and related parties, the Company will provide
you with a private office at the Company's Woodland Hills headquarters and with
associated telecommunication services and administrative services (at no charge)
as described in the Separation Agreement.
To acknowledge your agreement, please sign below where
indicated.
Very Truly Yours,
/s/ Xxxxxx X. Xxxx
Xxxxxxx Xxxx
Acknowledge and Agreed:
Date: Dec. 11, 2006
---------------------------
/s/ Xxxx Xxxx
---------------------------
Xx. Xxxx Xxx Xxxx
Appendix 2
[Existing Employment Agreement]
Exhibit 10.5
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
1st day of November, 1999, by and between Xxxx Xxx Xxxx ("Employee") and Optical
Communication Products, Inc., a California corporation ("Company").
RECITALS:
1. The Company has been formed for the purpose of developing,
manufacturing and selling optical communication interface components and
subsystems for use in optical fiber interface components and subsystems for use
in optical fiber communications systems.
2. Employee has previous experience in the businesses conducted and to
be conducted by the Company and is a stockholder of the Company.
COVENANTS:
In consideration of the recitals and mutual covenants contained
herein, the parties agree that:
1. The Company will employ Employee to serve as Chief Executive
Officer and President in connection with the Company's operations and Employee
does hereby accept such employment, all subject to the terms and provisions of
this Agreement. Employee represents that he is legally free to enter into this
agreement and that it does not conflict with any of his duties or obligations to
any other person and that he is not in any way restricted by any duties or
obligations to any other person from contributing his full knowledge and talents
to the Company in performing his duties hereunder.
2. This Agreement shall have an initial one-year term, which shall be
automatically renewed each year unless the Company, upon thirty (30) days prior
written notice, notifies Employee of its intent not to renew the Agreement, with
the consequences hereinafter set forth. Notwithstanding the foregoing, the
Company or the Employee may at any time terminate this Agreement and the
employment relationship on thirty (30) days' prior written notice to the other,
with the consequences hereinafter set forth.
3. During the year ending 2000, the Company agrees to compensate
Employee (from the commencement of this Agreement) at the rate of not less than
$199,281 per year from which the Company shall withhold and deduct all
applicable federal and state income, social security and disability taxes as
required by applicable laws. Thereafter, Employee's annual compensation shall be
subject to annual review and shall be established by the Board of Directors of
the Company, but in no event shall Employee's minimum compensation be reduced
below $199,281 per year. Such compensation shall be payable every two weeks or
on such other basis as the Company may establish.
4. Annual bonuses may be paid to Employee in the discretion of the
Company's Board of Directors, but this paragraph should not be construed as
creating any duty on the part of the Company to declare or pay any bonuses to
Employee.
5. Employee agrees to devote his entire working time, attention and
energies to the business of the Company and agrees to perform such reasonable
responsibilities and duties as may be assigned to him from time to time by the
Company's Board of Directors, which shall be consistent with his position as
Chief Executive Officer and President. In no event shall the Employee be
precluded from activities in professional societies, or from lecturing or
writing in areas of his professional expertise, for reasonable periods and
Employee shall be entitled to retain honoraria, publication royalties and
similar compensation paid as a result of such activities.
6. Employee shall be entitled to reimbursement by the Company for
such customary, ordinary and necessary business expenses as are incurred by him
in the performance of his duties and activities associated with promoting or
maintaining the business of the Company. All expenses as described in this
paragraph will be reimbursed only upon presentation by Employee of such
documentation as may be reasonably necessary to substantiate that all such
expenses were incurred in the performance of his duties.
7. Upon the termination of Employee's employment with the Company and
the concurrent or subsequent sale or other disposition by the Employee of all of
Employee's shares of stock in the Company, Employee agrees to refrain from
carrying on a business similar to Company's business within any county or
counties in which Company has done and continues to do business, for a period of
six months or, if Employee's employment is terminated pursuant to Paragraph 12
(e) or 12 (f), then for as long as the Employee receives salary payments from
the Company.
8. As a condition of employment under this Agreement, Employee shall
execute the "Proprietary Rights and Confidentiality Agreement" attached hereto
as Exhibit A and made a part hereof by this reference.
9. During the term of this Agreement, Employee will undertake no
planning for or organization of any business activity competitive with the work
he performs as an employee of the Company, and Employee will not combine or
conspire with other employees of the Company for the purpose of organization of
any such competitive business activity. Employee acknowledges that he has no
confidentiality obligations whatsoever continuing to any previous employer and
relating to the business or proposed business of the Company.
10. Employee agrees to execute any and all documents and take any and
all other actions necessary or desirable for the assignment to the Company of
all of his interests in any patents or patentable ideas developed by him, alone
or in conjunction with others, in the course of his employment by the Company.
11. The parties hereto agree and acknowledge that many of the rights
conveyed by this Agreement are of a unique and special nature and that the
Company will not have an adequate remedy at law in the event of failure of
Employee to abide by its terms and
2
conditions, nor will money damages adequately compensate for such injury. It is,
therefore, agreed between the parties that in the event of breach by Employee of
Employee's agreement contained in paragraphs 7, 8, or 9 of this Agreement, the
Company shall have the rights, among other rights, to damages sustained thereby
and to a preliminary or permanent injunction to restrain Employee from the
prohibited acts. Employee agrees that this Paragraph (and Paragraphs 7, 8 and 9
as and to the extent referred to in this paragraph) shall survive the
termination of his employment for a period of six months or, if Employee's
employment is terminated pursuant to Paragraph 12(e) or 12(f), then for as long
as the Employee receives salary payments from the Company. Nothing herein
contained shall in any way limit or exclude any and all other rights granted by
law or equity to the Company.
12. a. If the Company provides notice to Employee of its intent not to
renew the Agreement, as provided in Paragraph 2 of the Covenants to this
Agreement, Employee shall be entitled to payment of an amount equal to
Employee's salary and benefits at the time of termination for a period of one
year from the date of termination. Other than payment of this amount, the
Company shall have no further obligation to pay Employee any compensation or
benefits whatsoever.
b. This Agreement shall be terminated upon the death of Employee.
In such event, Employee shall be entitled to payment of Employee's salary and
benefits through one month after the date of Employee's death. Other than
payment of this amount, the Company shall have no further obligation to pay
Employee any compensation or benefits whatsoever.
c. If, in the sole opinion of the Company's Board of Directors,
Employee shall be prevented from properly performing his duties hereunder by
reason of any physical or mental incapacity or disability, for a period of more
than one hundred and twenty (120) days in the aggregate in any twelve-month
period, then, to the extent permitted by law, his employment with the Company
shall terminate. Employee shall be entitled in such event to payment of
Employee's salary and benefits through one month after the effective date of
termination upon disability. Other than payment of this amount, the Company
shall have no further obligation to pay Employee any compensation or benefits
whatsoever.
d. The Company reserves the right to terminate this agreement
immediately, at any time, if, in the reasonable opinion of the Company's Board
of Directors: Employee breaches or neglects the duties which he is required to
perform under the terms of this Agreement; commits any material act of
dishonesty, fraud, misrepresentation or other act of moral turpitude; is guilty
of gross carelessness or misconduct; fails to obey the lawful direction of the
Company's Board of Directors; or acts in any way that has a direct, substantial
and adverse effect on the Company's reputation. The Company's total liability to
Employee in the event of termination of Employee's employment under this section
shall be limited to the payment of Employee's salary and benefits through the
effective date of termination.
e. The Company reserves the right to terminate this Agreement
without cause, and for any reason whatsoever, upon 30 days' notice to Employee.
Upon termination under this subsection, Employee shall receive payment of an
amount equal to Employee's salary and benefits at the time of termination for a
period of one year from the date
3
of termination. Other than payment of this amount, the Company shall have no
further obligation to pay Employee any compensation or benefits whatsoever.
f. This Agreement may be terminated upon mutual written consent of
the Company and Employee. Upon termination under this subsection, Employee shall
receive payment of an amount equal to Employee's salary and benefits at the time
of termination for a period of six months from the date of termination. Other
than payment of this amount, the company shall have no further obligation to pay
Employee any compensation or benefits whatsoever.
g. Upon termination of employment for any reason whatsoever,
Employee shall be deemed to have resigned from all offices then held with the
Company.
13. This Agreement and the documents referred to herein contain the
entire agreement of the parties relevant to the subject matter hereof, and it
may be amended only by a written document signed by all parties to this
agreement who are affected by the amendment.
14. This Agreement shall be governed by the laws of the State of
California, the principal place of business of the company.
15. If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
shall, nevertheless, continue in full force and effect without being impaired or
invalidated in any way.
16. The parties hereto shall not be deemed to have waived any of their
respective rights under this Agreement unless the waiver is in writing and
signed by such waiving party. No delay in exercising any right shall be a waiver
nor shall a waiver on one occasion operate as a waiver of such right on a future
occasion.
17. All notices provided for herein shall be in writing and shall be
deemed to have been given when delivered personally, when deposited in the
United States mail, registered or certified, postage prepaid, or when delivered
to an overnight courier guaranteeing next-day delivery, addressed as follows:
To: Optical Communications Products, Inc.
00000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
To: Xxxx Xxx Xxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
or at such other addresses as either of said parties may from time to time in
writing appoint.
18. This agreement is personal to employee and he may not assign or
delegate any of his rights or obligations hereunder without first obtaining the
written consent of the Company.
4
19. With the exception of matters arising under Section 7 of this
Agreement, any controversy between the Company and Employee or between any
employee of the Company and Employee, including, but not limited to, those
involving the construction or application of any of the terms, provisions or
conditions of this agreement or otherwise arising out of or relating to this
Agreement, shall be settled by arbitration in accordance with the then current
commercial arbitration rules of the American Arbitration Association, and
judgment on the award rendered by the arbitrator(s) may be rendered by any court
having jurisdiction thereof. The Company and Employee shall share the cost of
the arbitrator equally but shall each bear their own costs and legal fees
associated with the arbitration. The location of the arbitration shall be in Los
Angeles, California.
20. This Agreement shall inure to the benefits of and be binding upon
the heirs, successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized officers or agents.
EMPLOYEE:
/s/ Xxxx Xxx Xxxx
---------------------------------------
Xxxx Xxx Xxxx
OPTICAL COMMUNICATION PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Chief Financial Officer and Secretary
5
EXHIBIT A
---------
PROPRIETARY RIGHTS AND CONFIDENTIALITY AGREEMENT
------------------------------------------------
In return for new or continued employment by Optical Communication
Products, Inc. (hereinafter, the "Company'), Employee acknowledges and agrees as
follows:
1. For the purposes of this Agreement:
a. "Information" shall mean any and all discoveries, ideas, facts,
or any other information relating to the operation of the Company's
business, of whatever type and in whatever form, which is disclosed or otherwise
made available to Employee by the Company in confidence, including, but not
limited to, all information relating to financial, personnel, sales, customers
and scientific matters of the Company, and any other discoveries, ideas,
business plans, or facts relating to any of the foregoing, whether developed by
Employee or by others;
b. "Trade Secret" shall mean any and all Information that derives
independent economic value, actual or potential, from not being generally known
to persons who can obtain economic value from its disclosure or use, and that is
the subject of reasonable efforts by the Company to maintain its secrecy.
c. "Inventions" shall mean designs, trademarks, discoveries,
formulae, processes, manufacturing techniques, Trade Secrets, Information,
improvements, ideas or copyrightable works.
2. Employee understands that any and all Information and Trade
Secrets are received or developed by him and are disclosed to him in confidence,
and are to be used only for the purpose for which they are provided. During the
term of this employment with the Company or thereafter, Employee shall not,
directly or indirectly, except as required by the normal business of the Company
or expressly consented to in writing by the Board of Directors of the Company:
a. disclose, publish or make available any Information or Trade
Secrets, other than to an employee, officer or director of the Company who, in
the reasonable exercise of Employee's judgment, needs to know such Information
or Trade Secrets in order to perform his duties to the Company;
b. sell, transfer or otherwise use or exploit or permit the sale,
transfer, use or exploitation of the Information or Trade Secrets for any
purpose other than those for which they were provided; or
c. remove from the Company's premises or retain upon termination
any Information or Trade Secrets, any copies thereof or any tangible or
retrievable materials containing or constituting Information or Trade Secrets.
3. Upon termination of Employee's employment or upon request by the
Company, Employee shall return to the Company all tangible forms of Information
and Trade Secrets.
4. Employee understands that the Company is the sole owner of any and
all property rights in Inventions, including, but not limited to, the right to
use, sell, license or otherwise transfer or exploit the Inventions, and the
right to make such changes in them and the uses thereof as the Company may from
time to time determine. Employee agrees to disclose and assign to the Company,
without further consideration, his entire right, title, and interest (throughout
the United States and in all foreign
countries) free and clear of all liens and encumbrances, in and to all
Inventions, which shall be the sole property of the Company, whether or not
patentable. Employee also agrees to cooperate with the Company both during and
after employment in obtaining and enforcing patents, copyrights, and other
protection of the Company's rights in Inventions. As provided in Section 2870 of
the California Labor Code, this section 4 does not apply to any inventions:
a. for which no equipment, supplies, facility, or Trade Secrets of
the Company were used;
b. which was developed entirely on Employee's own time; and
c. which does not relate at the time of conception or reduction to
practice to the Company's current business or its actual or demonstrably
anticipated research or development, or which does not result from any work
performed by Employee for the Company.
5. Employee certifies that he has no continuing obligations with
respect to the assignment of Inventions or the worldwide copyrights to
Inventions, nor does Employee claim any previous uncopyrighted Inventions within
the scope of this Agreement as Employee's own, except for the Inventions, if
any, which Employee has listed in Appendix A to this Agreement.
6. Employee certifies that there is no other contract or duty on
Employee's part now in existence to assign Inventions. Employee will not
disclose or induce the Company to use any confidential information or material
that Employee is now or shall become aware of which belongs to anyone other than
the Company.
7. This Agreement does not constitute a contract of employment and
does not in any way restrict Employee's right or the right of the Company to
terminate Employee's employment.
Dated: /s/ Xxxx Xxx Xxxx
------------------------- -------------------------
Employee
7
APPENDIX A
----------
I have made or improved the following Inventions and claim sole right
to them. I include below the names of co-inventors or employers to whom I owe a
continuing obligation with respect to these Inventions.
Dated:_________________________ ______________________________________
Employee
