[FORM OF]
LEAVE OF ABSENCE AGREEMENT
This LEAVE OF ABSENCE AGREEMENT ("Agreement") is entered into as of
December ___, 2000 by and between BEI TECHNOLOGIES, INC., a Delaware corporation
("Company"), and [Employee Name] ("Employee"), collectively referred to herein
as the parties.
WHEREAS, Employee is currently employed by Company as [position],
WHEREAS, Employee desires to take a leave of absence from [his/her]
employment with Company for the sole and exclusive purpose of rendering services
to OpticNet, Inc., a Delaware Corporation ("OpticNet");
WHEREAS, Company approves of such leave of absence; and
WHEREAS, the parties desire to set forth the terms of such leave of
absence by this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
and provisions contained herein, the parties agree as follows:
AGREEMENT
1. LEAVE OF ABSENCE. The Company shall grant Employee a leave of absence
("Leave") for the sole and exclusive purpose of Employee's acceptance
and commencement of full-time employment with OpticNet.
2. TERM OF LEAVE.
2.1 Commencement of Leave. The Leave shall commence effective as
of January 1, 2001.
2.2 Expiration of Leave with Right to Return to Work upon Mutual
Consent. Employee shall have an immediate and unconditional
right to terminate [his/her] Leave and return to work with
Company, in a position and with compensation to be determined
at Company's sole and exclusive discretion, which position and
compensation shall not be less favorable than Employee's
current position and compensation with Company, provided, that
the Leave will expire upon the earliest to occur of the
following dates:
(a) Such Leave will expire by its term on [Date].
(b) Upon full vesting of all stock options and restricted
stock grants for shares of the Company's Common Stock
made to Employee by Company prior to December 31,
2000;
1.
(c) Upon Employee's termination by OpticNet without
Cause. "Cause" for termination shall mean: (i)
indictment or conviction of any felony or of any
crime involving dishonesty; (ii) participation in any
fraud against OpticNet [as determined in good faith
by the Chief Executive Officer of OpticNet]; (iii)
breach of Employee's duties to OpticNet, including
persistent unsatisfactory performance of job duties;
(iv) intentional damage to any property of OpticNet;
(v) wrongful disclosure of any trade secrets or other
confidential information of OpticNet; or (vi) an
irreconcilable conflict of interest between Employee
and OpticNet.
2.3 Expiration of Leave Without Right to Return to Work.
Employee shall have no right to return to work at
Company should the Leave expire upon the earliest of:
(a) Upon Employee's termination by OpticNet for
Cause.
(b) Upon Employee's termination by OpticNet
without Cause, should Employee fail to
return to work at Company within five
business days after the effective date of
the termination;
(c) Employee's termination of employment with
Company, other than as may be construed
pursuant to the Leave. Nothing in this
Agreement is intended to alter the at-will
employment relationship between Employee and
Company. Employee and Company may terminate
their employment relationship at any time,
with or without cause or advance notice;
(d) Employee's death, or any illness, disability
or other incapacity in such a manner that
Employee is physically rendered unable
regularly to perform [his/her] duties to
OpticNet for a period in excess of one
hundred twenty (120) consecutive days or
more than one hundred eighty (180) days in
any consecutive twelve (12) month period; or
(e) A Change in Control of Company, which is
defined as (i) a sale, dissolution or
liquidation of substantially all of the
assets of the Company; (ii) a merger or
consolidation in which the Company is not
the surviving corporation or the sale or
exchange by the stockholders of the Company
of all or substantially all of the capital
stock of the Company in each case where the
stockholders of the Company immediately
before such merger or consolidation or sale
or exchange do not obtain or retain,
directly or indirectly, at least a majority
of the beneficial interest in the voting
stock or other voting equity of the
surviving or acquiring corporation or other
surviving or acquiring entity; or the sale
or exchange of all or substantially all of
the Company's assets (other than a sale or
transfer to a subsidiary of the Company as
defined in section 425(f) of the Internal
Revenue Code of 1986, as amended (the
"Code")) where the stockholders of the
Company immediately before such sale or
exchange do not obtain or retain, directly
or indirectly, at least a majority of the
beneficial interest in the voting
2.
stock or other voting equity of the
corporation or other entity acquiring the
Company's Assets.
2.4 Designation of Leave. During the term of the Leave, the
Company shall continue to carry the Employee on its inactive
payroll roster, and the Leave shall be designated as an Unpaid
Administrative Leave of Absence.
3. SERVICES TO BE PERFORMED. During the term of the Leave, Employee shall
be an employee of and render services to OpticNet (the "Services"). The
specific services to be provided shall be assigned to Employee by
OpticNet. Employee shall make all reasonable efforts to perform such
Services in a professional manner, in accordance with OpticNet's
direction and instructions. Employee will be expected to abide by
OpticNet's employment rules and policies, and upon request shall enter
into OpticNet's standard agreement regarding proprietary information
and inventions.
4. CONFIDENTIAL INFORMATION AND INVENTIONS.
4.1 Proprietary Information and Inventions Agreement. Subject to
Section 4.2 below, during the Leave, Employee will continue to
be bound by [his/her] Employee Proprietary Information and
Inventions Agreement with Company dated [date], a copy of
which is attached hereto as Exhibit A; provided, however, that
during the Leave all rights of assignment and otherwise of
Company stated in Section 2 of such agreement shall instead be
rights of and to the benefit of OpticNet; provided, however,
that OpticNet may agree with the Company, on a project by
project basis, to assign such rights of assignment of OpticNet
under such agreement to the Company as the same may relate to
such specified project .
4.2 Use of Company Proprietary Information. Except as expressly
prohibited by Company, Employee may use on behalf of OpticNet,
or disclose to OpticNet, confidential or proprietary
information or materials of Company for the sole purpose of
performing the Services, and Company hereby consents to such
use and/or disclosure by the Employee for such purpose. To the
extent that any provision in any contract between Company and
Employee is inconsistent with this Agreement, Company hereby
waives such provision.
5. SALARY AND BENEFITS.
5.1 Salary. During the Leave, Employee shall receive no salary,
compensation or remuneration of any kind from Company.
5.2 Benefits. During the Leave, Employee shall not be eligible for
those benefits regularly provided to employees of Company,
except (a) as provided herein, or (b) if and to the extent
Employee otherwise remains eligible to continue such benefits
as an employee of OpticNet.
5.3 Stock Options; Restricted Stock. For purposes of the Company's
1997 Stock Option Plan and the 1992 Restricted Stock Plan of
BEI Electronics, Inc. (a predecessor in interest to the
Company) (the "Plan(s)"), Employee's Leave shall
3.
constitute "Continuous Service," and shall not in any way
constitute a termination of employment by Employee, and such
options to purchase shares of the Company's Common Stock and
grants of shares of restricted stock held by Employee as of
December 31, 2000 shall continue to vest pursuant to and
otherwise be governed by, the terms of the Plan(s). During the
Leave such continued vesting shall be based upon the continued
employment of Employee by OpticNet and the Services provided
to OpticNet by Employee.
5.4 [Deferred Compensation Plan. [for one individual only] The
Company agrees that Employee's rights and obligations with
respect to that certain Executive Deferred Compensation Plan
and Arrangement (the "Deferred Compensation Arrangement")
entered into between the Company and the Employee to provide
for the deferral of a portion of such Employee's base salary
and/or annual bonus, such monies accrued for the benefit of
Employee as of December 31, 2000 shall continue to be held in
trust under such Deferred Compensation Arrangement and such
Deferred Compensation Arrangement shall continue in full force
and effect, without modification, during the Leave, and the
Leave shall not constitute a termination of employment for
purposes of the Deferred Compensation Arrangement. ]
6. ENTIRE AGREEMENT. This Agreement, including Exhibit A, constitutes the
entire agreement between the parties with regard to this subject matter
and supersedes any and all agreements, whether oral or written, between
the parties with respect to its subject matter. This Agreement can only
be modified in a writing signed by Employee and a duly authorized
officer of Company.
7. SEVERABILITY. Should any term, covenant, condition, or provision of
this Agreement be held to be invalid or unenforceable, the remainder of
the Agreement shall remain in force and shall stand as if the
unenforceable part did not exist. The captions in this Agreement are
provided for convenience only and are not part of the terms and
conditions of this Agreement.
In witness hereof, the parties have executed this Agreement on the date
indicated below:
BEI TECHNOLOGIES, INC. [EMPLOYEE]
By:
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Title: Date:
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Date:
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Exhibit A: Employee Proprietary Information and Inventions Agreement
4.
