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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Agreement, dated as of September 29, 1999, is between JDS Uniphase
Corporation, a Delaware corporation (the "Company") and the Employee of the
Company who is a signatory to this agreement ("Employee").
PREMISES
WHEREFORE,
1. Employee currently is employed by Company or one of its subsidiaries;
and
2. Company and Employee wish to clarify their existing employment
relationship with a written Employment Agreement upon the terms herein provided
regarding Employee's employment with Company;
AGREEMENT
NOW, THEREFORE, based on the foregoing premises and in consideration of
the commitments set forth below, Employee and Company agree as follows:
1. Definitions.
As used herein, the following terms are defined as follows:
a. "Cause" means:
(i) willful malfeasance by Employee, which has a material adverse
effect on the Company;
(ii) substantial and continuing willful refusal by Employee to
perform duties ordinarily performed by an employee in the same position and
having similar duties as Employee;
(iii) conviction of Employee for a felony which has a material
adverse effect on the Company's goodwill if Employee is retained as an employee
of the Company;
(iv) willful failure by Employee to comply with material policies
and procedures of the Company; or
(v) material failure by Employee to fulfill his employment
responsibilities in a competent and professional manner consistent with his
assigned job responsibilities and such failure shall not have been remedied by
Employee following not less than thirty (30) days written notice from the
Company to Employee regarding such failure.
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b. "Good Reason" means:
(i) a material reduction in Employee's salary without Employee's
prior written consent;
(ii) a material adverse change in Employee's position, duties or
responsibilities without Employee's prior written consent;
(iii) an actual change in Employee's principal work location by
more than 50 kilometers without Employee's prior written consent; or
(iv) failure by the Company to obtain from any successor company
the assumption of the Company's obligations under this Agreement.
c. "Disabled" means a mental or physical disability, illness or
injury, evidence by medical reports from a duly qualified medical practitioner,
which renders the Employee unable to perform the essential duties of his or her
position, and "Disability" has a corresponding meaning.
d. "Effective Date" means:
(i) in the event the Company terminates the employment of
Employee, the date designated by the Company as the last day of Employee's
employment;
(ii) in the event the Employee resigns his or her employment with
the Company, the date designated by the Company as the effective date of
resignation;
(iii) in the event the Employee dies, the date of death;
(iv) in the event the Employee becomes Disabled, the date
designated by the Company as the last day of Employee's employment.
2. Position, Duties, Responsibilities
a. Position: Employee is employed by Company to render services to
Company in the position described in Exhibit A attached hereto, subject to the
provisions of paragraph 3 below.
b. Other Activities: Except upon the prior written consent of the
Company, Employee will not (i) accept any other employment, or (ii) engage,
directly or indirectly, in any other business activity (whether or not pursued
for pecuniary advantage) that is or may be in conflict with, or that might place
Employee in a conflicting position to that of, the Company.
3. Compensation
In consideration of the services to be rendered under this Agreement,
Company shall pay to Employee a base annual salary and an annual bonus
contingent upon performance in
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the amounts and in accordance with the parameters set forth in Exhibit A
attached hereto. Such salary and bonus, if any, shall in each case be payable in
accordance with the Company's payroll practices. Employee's salary and bonus
parameters will be reviewed from time to time in accordance with Company's
established procedures for adjusting salaries for similarly situated employees.
Employee shall be eligible to participate in Company's benefit plans and to
receive prerequisites of employment as established by Company, and as may be
amended from time to time in Company's sole discretion.
4. Term
The term (the "Term") of this Agreement shall commence on the
date hereof and shall expire on July 6, 2004 unless sooner terminated as
provided herein (the date of termination of this Agreement, the "Expiration
Date"). In the event that the Expiration Date shall be July 6, 2004 and
Employee's employment with the Company shall continue thereafter, such
employment shall be employment at will, terminable by either Employee or the
Company on reasonable notice, and neither party shall have any further rights or
obligations pursuant to this Agreement.
5. Termination.
a. Termination Benefits Under Certain Circumstances. If the
Employee's employment is terminated, prior to the Expiration Date, by the
Company (other than for Cause), as the result of the Death or Disability of the
Employee, or by the Employee for Good Reason, conditioned upon the Employee's
executing and delivering to the Company a release of claims, reasonably
acceptable to the Company, Employee will be entitled to the following benefits
in full satisfaction of any statutory, contractual or common law entitlements
which Employee has or could have as a result of the termination of the Term: (i)
the Company shall pay to the Employee, in one lump sum, an amount equal to (A)
salary for the period specified in Exhibit A attached hereto (the "Severance
Period"), at the Employee's annual salary in effect on the Effective Date, plus
(B) a bonus for that year(s) comprising the Severance Period (calculated based
on the average of the bonus awarded to Employee in each of the previous three
years of employment by the Company), minus any amounts to which Employee is
otherwise entitled under any statutory or Company long or short term disability
plan and minus any required withholdings or deductions; and (ii) Employee's
right, title and entitlement to any unvested options or any other securities or
similar incentives which have been granted or issued to Employee as of the
Effective Date, which would have vested during that period commencing upon the
Effective Date and continuing for the duration of the Severance period, shall
immediately vest, free from any restrictions (other than those imposed by
applicable state and federal securities laws), provided that all such securities
shall continue to be exercisable (if applicable) for 90 days from the Effective
Date or until the term such securities would have otherwise expired (if
applicable), whichever is earlier. Such payments and other consideration payable
by the Company pursuant to this Section 5(a) shall be accepted by Employee, or
his heirs as the case may be, in exchange for a full and complete release by
Employee of all causes of action, claims or other rights that he may have
against the Company arising in connection with his employment or pursuant to
this Agreement. The Company shall have no obligations under this paragraph with
respect to any termination of the Term for any reason other than as specified in
the first sentence of this paragraph.
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b. Termination For Cause: This Agreement shall terminate immediately
upon the termination of Employee for Cause. Thereafter, all obligations of
Company under this Agreement shall cease.
c. By Death: Employee's employment shall terminate automatically upon
the death of Employee. Company shall pay to Employee's beneficiaries or estate,
as appropriate, the compensation set forth in Section 5.a. Thereafter, all
obligations of Company under this Agreement shall cease. Nothing in this Section
shall affect any entitlement of Employee's heirs to the benefits of any life
insurance plan or other applicable benefits.
d. By Disability: If Employee suffers from a Disability, then, to the
extent permitted by law, Company may terminate Employee's employment. Company
shall pay to Employee the compensation set forth in Section 5.a. Thereafter, all
of Company's obligations under this Agreement shall cease. Nothing in this
Section shall affect Employee's rights under any disability plan in which he is
a participant.
6. Termination Obligations
a. Return of Company's Property: Employee hereby acknowledges and
agrees that all personal property, including, without limitation, all books,
manuals, records, reports, notes, contracts, lists, blueprints, and other
documents, or materials, or copies thereof, and equipment furnished to or
prepared by Employee in the course of or incident to Employee's employment,
belong to Company and shall be promptly returned to Company upon termination of
Employee's employment.
b. Cooperation in Pending Work: Following any termination of
Employee's employment, Employee shall fully cooperate with Company in all
matters relating to the winding up of pending work on behalf of Company and the
orderly transfer of work to other employees of Company. Employee shall also
cooperate in the defense of any action brought by any third party against
Company that relates in any way to Employee's acts or omissions while employed
by Company.
7. Notices
All notices or other communications required or permitted hereunder
shall be made in writing and shall be deemed to have been duly given if
delivered by hand or mailed, postage prepaid, by certified or registered mail,
return receipt requested, and addressed to Company:
JDS Uniphase Corporation
000 Xxxxxxxxx Xxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
and to Employee at:
[Employee's Home Address]
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Employee and the Company shall be obligated to notify the other party of
any change in address. Notice of change of address shall be effective only when
made in accordance with this Section.
8. Entire Agreement
Subject to the last sentence of this paragraph, the terms of this
Agreement are intended by the parties to be the final and exclusive expression
of their agreement with respect to the employment of Employee by Company and may
not be contradicted by evidence of any prior or contemporaneous statements or
agreements. Subject to the last sentence of this paragraph, the parties further
intend that this Agreement shall constitute the complete and exclusive statement
of its terms and that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative, or other legal proceeding involving this Agreement. To
the extent that the practices, policies, or procedures of Company, now or in the
future, apply to Employee and are inconsistent with the terms of this Agreement,
the provisions of this Agreement shall control. Notwithstanding the foregoing,
nothing in this agreement shall limit or modify, in any manner, any existing or
future agreement between the Employee and the Company relating to proprietary
information, inventions, treatment of confidential information, non-competition
or employee benefits or incentive plans or any agreement between the Company and
Employee set forth in Exhibit A attached hereto.
9. Amendments, Waivers
This Agreement may not be modified, amended, or terminated except by
an instrument in writing, signed by Employee and by a duly authorized
representative of Company other than Employee. No failure to exercise and no
delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein.
Employee and the Company each specifically agree and acknowledge that
they each waive recourse to any remedies in tort, and further agree and
acknowledge their intent that all rights and liabilities pertaining to the
cessation of the employment relationship between them, where such cessation
occurs on or before the Expiration Date, be as set out in this Agreement (or in
any subsequent modification of this Agreement, provided that the modification is
in writing and signed by both parties).
10. Assignment; Successors and Assigns
Employee agrees that Employee will not assign, sell, transfer,
delegate or otherwise dispose of, whether voluntarily or involuntarily, or by
operation of law, any rights or obligations under this Agreement, nor shall
Employee's rights be subject to encumbrance or the
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claims of creditors. Any purported assignment, transfer, or delegation shall be
null and void. Nothing in this Agreement shall prevent the consolidation of the
Company with, or its merger into, any other corporation, or the sale by the
Company of all or substantially all of its properties or assets, or the
assignment by the Company of this Agreement and the performance of its
obligations hereunder to any successor in interest. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective heirs, legal representatives, successors, and
permitted assigns, and shall not benefit any person or entity other than those
enumerated above.
11. Severability; Enforcement
If any provision of this Agreement, or the application thereof to
any person, place, or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable, or void, the remainder of this
Agreement and such provisions as applied to other persons, places, and
circumstances shall remain in full force and effect.
12. Governing Law
The validity, interpretation, enforceability, and performance of
this Agreement, other than Section 4, shall be governed by and construed in
accordance with the law of the State of California.
13. Employee Acknowledgment
The parties acknowledge (a) that they have consulted with or have
had the opportunity to consult with independent counsel of their own choice
concerning this Agreement, and (b) that they have read and understand the
Agreement, are fully aware of its legal effect, and have entered into it freely
based on their own judgment and not on any representations or promises other
than those contained in this Agreement.
14. Date of Agreement
The parties have duly executed this Agreement as of the date first
written above.
JDS UNIPHASE CORPORATION
By: Xxxxxxx X. Xxxxxx Xxxx Xxxxxxxx
Its: Chief Financial Officer Employee
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EXHIBIT A
Employee Name: Xxxx Xxxxxxxx
Base Salary: $225,000
Target Bonus: $90,000 (40%)
Bonus is contingent and based upon such individual, division and company-wide
performance parameters as determined by the Company from time to time.
Severance Period: 2 Years
Other Agreements: Change of Control Agreement, as previously executed
with the Company.
Senior Vice President, Business Development and General Counsel
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