EXHIBIT 10.10
AGREEMENT REGARDING CHANGE OF CONTROL
This Agreement is entered into as of this 3rd day of August 1998 by and
between Uniphase Corporation, a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxxxxx ("Executive").
RECITALS
Executive is employed by the Company and is a valued officer of the
Company. As an inducement to Executive to remain in the employ of the Company,
the Company wishes to provide for certain rights in favor of Executive to
exercise options to purchase shares of the Company's Common Stock held by
Executive upon a Change of Control (as defined below) of the Company upon the
terms herein provided.
NOW THEREFORE, in consideration of the foregoing and the mutual promises
herein contained, the parties agree as follows:
AGREEMENT
Section 1. Definitions
For purposes of this Agreement, the following definitions shall apply:
"Change of Control" shall mean the occurrence of one or more of the
following with respect to the Company: (i) the acquisition by any person (or
related group of persons), whether by tender or exchange offer made directly the
Company's stockholders, open market purchases or any other transaction or series
of transactions, of Common Stock possessing sufficient voting power in the
aggregate to elect an absolute majority of the members of the Company's Board of
Directors; (ii) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction in which securities representing more
than fifty percent (50%) of the total combined voting power of the surviving
entity are held by persons who held Common Stock immediately prior to such
merger or consolidation and those members of the Existing Board constitute a
majority of the Board of Directors immediately after such merger or
consolidation; (iii) any reverse merger in which the Company is the surviving
entity but in which either securities representing more than fifty percent (50%)
of the total combined voting power of the Company's outstanding securities are
transferred to holders different from those who held such securities immediately
prior to such merger or those members of the Existing Board do not constitute a
majority of the Board of Directors immediately after such merger; or (iv) the
sale, transfer or other disposition of all or substantially all of the assets of
the Company.
"Closing Date" shall mean the date of the first closing of the
transactions constituting a Change of Control.
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"Common Stock" shall mean $.001 par value, Common Stock of the Company.
"Executive's Stock Options" shall mean any options to purchase Common
Stock held by Executive that have been issued to Executive by the Company prior
to a Closing Date.
"Existing Board" shall mean the Board of Directors of the Company as
constituted immediately prior to the first date upon which any outstanding
voting shares or assets of the Company are sold, transferred or exchanged in
connection with a proposed Change of Control.
Section 2. Acceleration of Options on a Change in Control.
The Company agrees that the right of Executive to exercise the
Executive's Stock Options shall be accelerated as of the Closing Date of a
Change of Control so that Executive's Stock Options shall become fully
exercisable as of the Closing Date as to all shares of the Company's Common
Stock subject thereto and, subject to the terms of this Section 2, remain
exercisable thereafter in accordance with their terms. The foregoing
acceleration of the right of Executive to exercise Executive's Stock Options
shall apply notwithstanding any contrary terms in any stock option plan pursuant
to which such Options are granted or any stock option agreement executed by the
Company with respect to Executive's Stock Options, including, without
limitation, any stock option plan terms that are adopted or any stock option
agreement executed after the date hereof. Such acceleration of the
exercisability of the Executive's Stock Options shall apply and occur without
further action on the part of the Company, its Board of Directors, stockholders,
Executive or any other party. As a condition to an acceleration of the
Executive's Stock Options as provided in this Section 2, Executive agrees that
Executive's Stock Options shall terminate as of the Closing Date to the extent
unexercised as of such Closing Date if the terms and conditions of such Change
of Control require that all employee stock options terminate as of such Closing
Date. In no event shall this Section 2 be interpreted to cause the Executive's
Stock Options to be exercisable for a greater number of shares of Common Stock
than were subject to the Executive's Stock Options immediately prior to the
Closing Date.
Section 3. No Employment Agreement, Employment at Will
Except as previously herein provided, Executive and the Company each
acknowledge and agree that: (i) this Agreement does not provide for the terms
and conditions of Executive's employment with the Company and does not require
or obligate Executive to provide services to the Company or the Company to
continue to employ Executive; and (ii) Executive's employment with the Company
remains an employment relationship terminable at will by either Executive or the
Company.
Section 4. 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 the Company at:
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Uniphase Corporation
000 Xxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Attention: Chairman
or to the Executive at:
(Home Address of Xxxxxxx Xxxxxxxx)
Notice of change of address shall be effective only when done in accordance with
this Section.
Section 5. Successors
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
Section 6. California Law
The laws of the State of California shall govern the interpretation,
performance and enforcement of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
UNIPHASE CORPORATION, EXECUTIVE:
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
---------------------------- -----------------------------
Xxxxx Xxxxxxxxx Xxxxxxx Xxxxxxxx
Title: Chairman Title: Sr. VP Business Development
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