Exhibit 10.9
OPNEXT, INC.
000 Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
TERMS OF AGREEMENT
1. Employer: OpNext, Inc. ("OPNEXT").
2. Employee: Chi Ho Lin ("EXECUTIVE").
3. Position and Duties: Executive shall be the Senior Vice President, Sales
and Marketing of OpNext and shall have the normal
duties, responsibilities, functions and authority of
a senior vice president for sales and marketing of a
company the size and structure of OpNext. Executive
shall report directly to the Chief Executive Officer
("CEO"). Executive has primary responsibility for
global sales and marketing activities. Executive
shall be responsible for designing and implementing
policies and programs that direct both the marketing
and sales of OpNext's products and services.
Executive shall exercise such further
responsibilities and perform such further duties as
directed from time to time by the CEO and the Board
of Directors of OpNext (the "Board").
4. Base Salary: $275,000 per annum.
5. Annual Bonus: Executive will be eligible for a target bonus equal
to 40%-50% of Executive's base salary. Bonuses are
awarded in the sole discretion of the Board based on
OpNext's Annual Performance Bonus Plan as established
by the Board.
6. OpNext StockOptions: On the Closing Date of that certain Amended and
Restated Stock Purchase Agreement by and among
OpNext, Hitachi, Ltd. ("HITACHI"), Clarity OpNext
Holdings I, LLC, Clarity OpNext Holdings II, LLC and
Clarity Partners, L.P., dated as of July 31, 2001,
Executive will receive options to acquire 400,000
shares of Class B Common Stock of OpNext at a strike
price of $8.34 per share (the "OPNEXT STOCK
OPTIONS"). The OpNext Stock Options shall be subject
to vesting as follows: 1/4 of the OpNext Stock
Options shall vest on the first anniversary of the
Employment Start Date (as defined below); 1/4 of the
OpNext Stock Options shall vest on the second
anniversary of the Employment Start Date; 1/4 of the
OpNext Stock Options shall vest on the third
anniversary of the Employment Start Date; and 1/4 of
the OpNext Stock Options shall vest on the fourth
anniversary of the Employment Start Date (it being
understood that in the event Executive's employment
is terminated at the conclusion of the Initial Term
(as defined in Section 8 hereof) for reasons other
than for Cause, the final 1/4 of Executive's OpNext
Stock Options shall vest on the fourth anniversary of
the Employment Start Date). Each anniversary
of the Employment Start Date shall be referred to
herein as an "Anniversary Date."
Any unvested OpNext Stock Options shall automatically
cancel upon Executive's termination of employment
with OpNext; PROVIDED, HOWEVER, in the event that
Executive's employment is terminated without Cause
(as defined in Section 13 hereof) or for Good Reason
(as defined in Section 12 hereof) on any date other
than an Anniversary Date, Executive's 1/4 installment
of OpNext Stock Options that was scheduled to vest on
the next Anniversary Date following Executive's
termination of employment shall vest on such upcoming
Anniversary Date. In addition, in the event that
Executive's employment is terminated by reason of
Executive's death or Disability (as defined in
Section 14 hereof), Executive's OpNext Stock Options,
to the extent not previously vested, shall
immediately vest. The OpNext Stock Options will be
subject to the additional terms and conditions as
will be set forth in OpNext's Stock Incentive Plan
(the "STOCK INCENTIVE PLAN") and in a non-qualified
stock option agreement (the "STOCK OPTION AGREEMENT")
which Executive will execute in connection with
receiving the OpNext Stock Options.
7. Employment Start Date: For purposes of this Agreement, Executive's
employment start date will be deemed to be December
1, 2000.
8. Employment Term: The initial term (the "INITIAL TERM") of Executive's
employment with OpNext shall be for a period of
forty-eight (48) months, commencing on the Employment
Start Date and ending on November 30, 2004, unless
renewed as set forth herein. Executive's employment
will be renewed automatically upon expiration of the
Initial Term for successive one-year periods (each
such period, a "SUCCESSIVE TERM"), unless not less
than sixty (60) days prior to the end of the Initial
Term or any Successive Term (as the case may be),
either Executive or OpNext provides written notice to
the other of such party's intention not to renew the
employment.
9. Benefits: Executive will receive benefits in accordance with
OpNext company policy.
10. Vacation: Executive will receive 4 weeks paid vacation time.
11. Annual Performance Executive's job performance shall be reviewed
Reviews: annually by the Board. In conjunction with such
annual performance review process, Executive will be
eligible for salary increases, cash bonus awards (the
bonus target range is set forth under Section 5
above) and additional stock option awards, which will
be subject to company policy and vesting
arrangements. Salary increases, cash bonuses and
stock option awards will be determined by the Board
in its sole discretion based on the overall
performance of OpNext as well as Executive's
individual performance. Stock options, salary
increases and bonuses are awarded at the discretion
of the Board.
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12. Termination Without In the event Executive is terminated without Cause
Cause or With Good (as defined below) or Executive terminates his
Reason: employment for Good Reason (as defined below) prior
to the conclusion of the Initial Term, Executive
shall receive as severance an amount equal to one
times his annual base salary.
"Good Reason" as used herein shall mean:
(i) a material and substantial diminution of
Executive's duties or responsibilities or
Executive's removal as Chief Executive
Officer of OpNext; or
(ii) a reduction by OpNext of Executive's base
salary or target bonus range as set forth in
Section 5 above.
Executive must provide written notice to OpNext
within 20 days after the occurrence of an event
constituting Good Reason. OpNext shall have 20 days
after receipt of such written notice to cure. If
OpNext fails to cure and Executive resigns within 30
days after the end of the 20-day cure period, then
such resignation shall constitute resignation for
Good Reason.
Except as set forth above, upon termination without
Cause or resignation for Good Reason, Executive shall
not be entitled to receive any further compensation
or payments hereunder and any unvested stock options
shall immediately cancel. Vested stock options shall
be subject to the provisions of Executive's Stock
Option Agreement and the Stock Incentive Plan.
13. Termination "Cause" as utilized herein shall mean:
For Cause:
(i) the commission of a felony or the commission
of any other act or omission involving
dishonesty or fraud with respect to OpNext
or any of its subsidiaries or affiliates or
any of their customers or suppliers; or
(ii) conduct tending to bring OpNext or any of
its subsidiaries or affiliates into
substantial public disgrace or disrepute; or
(iii) breach of the Confidentiality Agreement
referred to below; or
(iv) fraud or embezzlement with respect to OpNext
or any of its subsidiaries or affiliates; or
(v) gross negligence or willful misconduct with
respect to OpNext or any of its subsidiaries
or affiliates; or
(vi) repeated failure to perform Executive's
duties as directed by the Board.
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Upon notice by OpNext to Executive of a termination
for Cause, the "Termination Date" shall be the date
on which such notice is mailed or hand-delivered, or
as otherwise specified in the notice of termination,
to Executive. Upon termination for Cause, resignation
by Executive without Good Reason or expiration of the
Initial Term or any Successive Term (as the case may
be), Executive shall not be entitled to receive any
further compensation or payments hereunder (except
for Executive's Base Salary relating to the period of
time prior to the Termination Date). Any unvested
OpNext Stock Options shall immediately cancel and
terminate as of the Termination Date. Vested stock
options shall be subject to the provisions of
Executive's Stock Option Agreement and the Stock
Incentive Plan.
14. Disability: If, by reason of any physical or mental injury,
illness or incapacity, Executive is unable to
effectively perform his duties and responsibilities
as determined by the Board ("DISABILITY") for more
than 180 days during any 12-month period, Executive's
employment with OpNext will be terminated. In
addition, in the event of Executive's Disability for
more than 30 consecutive days, Executive shall only
be entitled to receive such compensation as is
provided under OpNext's disability benefit plans. If
Executive's employment is terminated by reason of a
Disability as set forth herein, any unvested OpNext
Stock Options shall immediately vest as set forth in
Section 6 hereof and all vested OpNext Stock Options
shall be subject to the provisions of this Agreement,
Executive's Stock Option Agreement and the Stock
Incentive Plan.
15. Proprietary Executive agrees, at OpNext's request, to enter into
Information Agreement: a confidentiality agreement with OpNext (the
"CONFIDENTIALITY AGREEMENT").
16. Restrictions: Executive represents and warrants to OpNext that
there are no restrictions or agreements or
limitations on Executive's right or ability to enter
into this Agreement or perform the terms set forth
herein.
17. Confidential Executive acknowledges that during the course of
Information: performing services for OpNext, Executive will have
substantial access to trade secrets and other
confidential information of OpNext and its
subsidiaries and affiliates and will enter into the
Confidentiality Agreement to restrict the disclosure
by Executive of such trade secrets and other
confidential information
18. Noncompetition: Executive agrees that he will not, during his
employment with OpNext, and for a period of six (6)
months following the termination thereof (the
"NONCOMPETE PERIOD"), directly or indirectly engage
or participate, either as principal, agent, employee,
employer, consultant, stockholder, co-partner or in
any other individual or representative capacity
whatsoever, in the conduct or management of, or own
or have any stock or other proprietary or financial
interest in, any business that competes with the
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business carried on or planned by OpNext or its
subsidiaries at the time of the termination of his
employment, unless he shall have obtained the prior
written consent of OpNext, except that Executive
shall be permitted (i) to own up to two percent (2%)
of the capital stock of corporations whose securities
are publicly-owned and regularly traded on any
national exchange or in the over-the counter market;
and (ii) to own up to two percent (2%) of the voting
securities of companies that are privately held,
provided that in no event shall Executive possess any
managerial or decision-making authority in such
company or have the ability to influence the
management or affairs of such company.
19. Nonsolicitation: During the Noncompete Period, Executive shall not
directly or indirectly through another entity (i)
induce or attempt to induce any employee of OpNext or
any of its subsidiaries or affiliates to leave the
employ of OpNext or any of its subsidiaries or
affiliates, or in any way interfere with the
relationship between OpNext and any of its
subsidiaries and affiliates and any employee thereof,
(ii) induce or attempt to induce any customer,
supplier, licensee or other business relation of
OpNext or any of its subsidiaries or affiliates to
cease doing business with OpNext or such subsidiary
or affiliate or in any way interfere with the
relationship between any such customer, supplier,
licensee or business relation and OpNext and any
subsidiary or affiliate, or (iii) directly or
indirectly acquire or attempt to acquire an interest
in any business relating to the business of OpNext or
any of its subsidiaries or affiliates and with which
OpNext or any of its subsidiaries or affiliates has
entertained discussions or has requested and received
information relating to the acquisition of such
business by OpNext or any of its subsidiaries or
affiliates in the two-year period immediately
preceding the date of Executive's termination of
employment.
20. Withholdings: All payments set forth herein which are subject to
withholding shall be made less any required
withholdings.
21. Binding Arbitration: Any controversy arising out of or relating to this
Agreement or the Confidentiality Agreement shall be
settled by binding arbitration in New York City, New
York in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The
award rendered in any such proceeding shall be final
and binding, and judgment upon the award may be
entered in any court having jurisdiction thereof. The
costs of any such arbitration proceedings shall be
borne equally by OpNext and Executive. Neither party
shall be entitled to recover attorneys' fee or costs
expended in the course of such arbitration or
enforcement of the award rendered thereunder.
22. Governing Law: All issues and questions concerning the construction,
validity, enforcement and interpretation of this
Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of
New
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Jersey, without giving effect to any choice of law or
conflict of law provision or rule (whether of the
State of New Jersey or any other jurisdiction) that
would cause the application of the laws of any
jurisdiction other than the State of New Jersey.
23. Notices: All notices in connection herewith or provided for
hereunder shall be validly given or made only if made
in writing and delivered personally or mailed by
registered or certified mail, return receipt
requested, postage prepaid, to the party entitled or
required to receive the same, as follows:
If to Executive, addressed to:
Chi Ho Lin
000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
If to the Company, addressed to:
OpNext, Inc.
000 Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
* * * * *
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SIGNATURE PAGE TO TERMS OF AGREEMENT
Please indicate your agreement with the foregoing by signing in the
space indicated below.
OPNEXT, INC.
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx Xxxxx, Chief Executive Officer
AGREED TO AND ACCEPTED:
/s/ CHI HO LIN
-----------------
Name: Chi Ho Lin
AMENDMENT
AMENDMENT, dated April 19, 2004, to the Terms of Agreement by and
between Opnext, Inc. (the "Company") and Chi Ho Lin (the "Executive"), entered
into as of August 24, 2001 (the "Terms of Agreement").
WHEREAS, the Company and the Executive are the parties to the Terms of
Agreement, and wish to amend the Terms of Agreement to extend the duration of
the Initial Term, as defined therein;
NOW, THEREFORE, for good and valuable consideration, the parties to the
Terms of Agreement agree as follows:
All capitalized terms not defined in this Amendment shall have the
meanings given in the Terms of Agreement.
1. The first sentence of Paragraph 8 of the Terms of Agreement shall be
amended to read as follows in its entirety:
"The initial term (the "Initial Term") of Executive's employment with OpNext
shall be for a period of seventy-two (72) months, commencing on the Employment
Start Date and ending on December 1, 2006."
2. The Terms of Agreement (including, without limitation, the remainder
of Paragraph 8) shall in all other respects remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have signed their names,
effective as of the date first above written.
OPNEXT, INC.
/s/ XXXXX X. XXXXX
---------------------------
By: XXXXX X XXXXX
Title: PRESIDENT & CEO
/s/ CHI HO LIN
--------------
CHI HO LIN
AMENDMENT NO. 2
TO
TERMS OF AGREEMENT
AMENDMENT NO. 2, dated October 4, 2006, to the Terms of Agreement by
and between Opnext, Inc. (the "Company") and Chi Ho Lin (the "Executive")
entered into as of August 24, 2001 (the "Terms of Agreement").
WHEREAS, the Company and the Executive are the parties to the Terms of
Agreement, and wish to amend the Terms of Agreement to extend the duration of
the Initial Term, as defined therein;
NOW, THEREFORE, for good and valuable consideration, the parties to the
Terms of Agreement agree as follows:
All capitalized terms not defined in this Amendment shall have the
meanings given in the Terms of Agreement.
1. The first sentence of Paragraph 8 of the Terms of Agreement shall be
amended to read as follows in its entirety:
"The initial term (the "Initial Term") of Executive's employment with OpNext
shall be for a period of ninety-six (96) months, commencing on the Employment
Start Date and ending on December 1, 2008.
2. The Terms of Agreement (including, without limitation, the remainder
of Paragraph 8) shall in all other respects remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have signed their names,
effective as of the date first above written.
OPNEXT, INC.
By: /s/ XXXXX XXXXX
-----------------------------
XXXXX X. XXXXX
PRESIDENT & CEO
EXECUTIVE
By: /s/ CHI HO LIN
-----------------------------
CHI HO LIN
