Exhibit 02.1
Mutual Agreement and Release
The following agreement is entered into between Xxxxx X. Xxxxx ("you") and
Oplink Communications, Inc. (the "Company") this 2nd day of October, 2001.
1. Cessation of Employment. You will cease your employment with the
Company, and relinquish your title as Senior Vice President of Sales &
Marketing. Your last day of employment with the Company will be October 4, 2001
("Separation Date").
2. Proprietary Information. You acknowledge and agree to honor any and all
agreements regarding the Company's confidential information, including trade
secrets and intellectual property, and to not disclose or use any Company trade
secrets or confidential information, without the prior express written
authorization by the Company. You further agree to return all confidential
information to the Company upon your cessation of employment with the Company,
including all documents and tangible items.
3. Non-Recruitment. For twenty-four (24) consecutive months after your
Cessation Date, you agree not to directly or indirectly, without the prior
written consent of the Company, solicit, recruit, encourage or induce any
employees, directors, consultants, or contractors of the Company to leave the
employ of the Company, either on your own behalf or the behalf of any other
person or entity.
4. Severance Package.
i. Cash Payment
The Company will pay you one lump sum (the "Severance Cash") on the
Effective Date (as defined below) equal to that amount which, if applied in its
entirety to the repayment of the Promissory Note dated March 27, 2001 issued by
you in favor of the Company (the "Promissory Note"), grossed up to account for
any withholding tax associated therewith payable by you, would leave a principal
balance under the Promissory Note of $100,000. The Severance Cash will be paid
by way of the Company applying it, in its entirety, to the repayment of the
Promissory Note and the payment of any withholding tax for which the Company is
under an obligation to collect from you, and the withholding tax collected by
the Company will be forwarded in whole to the IRS on your account, leaving a
principal balance under the Promissory Note of $100,000 (the "Note Balance").
ii. Repayment of Outstanding Debt
You agree to notify the Company as soon as you accept any offer of
new employment. Unless accelerated by demand of the Company, the Note Balance
shall be repaid in four (4) equal installments of $25,000 each plus accrued
simple interest, Mutual Agreement and Release - Oplink Communications, Inc. and
Xxxxx X. Xxxxx
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due and payable every six (6) months, until repaid in full. The first
installment shall be due six (6) months from the day you start your new
employment.
iii. Extension of Option Exercise Right
The Company acknowledges that as of the Separation Date, you will
have vested 187,500 shares of the employee stock option(s) granted to you during
your employment with the Company. The Company agrees to extend your right to
exercise your vested option(s) so that the last day on which you are entitled to
exercise such right is January 4, 2004.
5. Availability. You agree that up through the Separation Date, you will
make yourself available during office hours for technical consultation or
customer support to the Company.
6. Nondisparagement. Both you and the Company agree to treat the other
party respectfully and professionally and not disparage the other party, and the
other party's officers, directors, employees, shareholders and agents, in any
manner likely to be harmful to them or their business, business reputation or
personal reputation; provided that both you and the Company will respond
accurately and fully to any question, inquiry or request for information when
required by legal process. The Company agrees to provide a truthful and accurate
letter of recommendation if asked for by you.
7. Mutual Release of All Claims. Except as otherwise set forth in this
Agreement, the Company hereby release you, and you hereby release, acquit and
forever discharge the Company, and its and its officers, directors, agents,
servants, employees, attorneys, shareholders, successors, assigns and
affiliates, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys' fees, damages, indemnities and obligations
of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and
including the execution date of this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with your employment with the Company or the cessation of that
employment; claims or demands related to salary, bonuses, commissions, stock,
stock options, or any other ownership interests in the Company, vacation pay,
fringe benefits, expense reimbursements, severance pay, or any other form of
compensation; claims pursuant to any federal, state or local law, statute,
common law, or other causes of action, including, but not limited to, the
federal Civil Rights Act of 1964, as amended; the federal Americans with
Disabilities Act of 1990; the federal Age Discrimination in Employment Act of
1967, as amended ("ADEA"); the California Fair Employment and Housing Act, as
amended; tort law; contract law; wrongful discharge; discrimination; harassment;
fraud; defamation; emotional distress; and breach of the implied covenant of
good faith and fair dealing.
Mutual Agreement and Release - Oplink Communications, Inc. and Xxxxx X. Xxxxx
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8. ADEA Waiver. You acknowledge that you are knowingly and voluntarily
waiving and releasing any rights you may have under the ADEA, as amended. You
also acknowledge that the consideration given for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which you were
already entitled. You further acknowledge that you have been advised by this
writing, as required by the ADEA, that: (a) your waiver and release do not apply
to any rights or claims that may arise after the execution date of this
Agreement; (b) you have been advised hereby that you have the right to consult
with an attorney prior to executing this Agreement; (c) you have twenty-one (21)
days to consider this Agreement (although you may choose to voluntarily execute
this Agreement earlier); (d) you have seven (7) days following the execution of
this Agreement by the parties to revoke the Agreement; and (e) this Agreement
will not be effective until the date upon which the revocation period has
expired, which will be the eighth day after this Agreement is executed by you,
provided that the Company has also executed this Agreement by that date
("Effective Date").
9. Waiver. In granting the release herein, you understand that this
Agreement includes a release of all claims known or unknown. In giving this
release, which includes claims which may be unknown to you at present, you
acknowledge that you have read and understand Section 1542 of the California
Civil Code which reads 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." You hereby expressly waive and relinquish all
rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to the release of any unknown or unsuspected claims
you may have against the Company.
DATED: October 2, 2001 DATED: October 2, 2001
/s/ XXXXXXXXX XXXXX /s/ XXXXX X. XXXXX
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XXXXXXXXX XXXXX Xxxxx X. Xxxxx
President
Oplink Communications, Inc.
Mutual Agreement and Release - Oplink Communications, Inc. and Xxxxx X. Xxxxx
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