1
EXHIBIT 2.4
EMPLOYEE MATTERS AGREEMENT
BETWEEN
MRV COMMUNICATIONS, INC.
AND
LUMINENT, INC.
EFFECTIVE AS OF
_______________, 2000
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I: DEFINITIONS....................................................... 1
Section 1.1 MRV................................................................... 1
Section 1.2 MRV Employee.......................................................... 1
Section 1.3 MRV Group............................................................. 1
Section 1.4 MRV Stock Value....................................................... 1
Section 1.5 MRV Terminated Employee............................................... 2
Section 1.6 401(k) Plan........................................................... 2
Section 1.7 AD&D Plan............................................................. 2
Section 1.8 Affiliate............................................................. 2
Section 1.9 Agreement............................................................. 2
Section 1.10 Ancillary Agreements.................................................. 2
Section 1.11 ASO Contracts......................................................... 2
Section 1.12 Assets................................................................ 2
Section 1.13 Benefits Committee.................................................... 2
Section 1.14 Bonus Plan............................................................ 2
Section 1.15 Business Travel Accident Insurance.................................... 2
Section 1.16 COBRA................................................................. 2
Section 1.17 Code.................................................................. 3
Section 1.18 Deferred Compensation Plan............................................ 3
Section 1.19 Disability Plan....................................................... 3
Section 1.20 Distribution.......................................................... 3
Section 1.21 Distribution Date..................................................... 3
Section 1.22 DOL................................................................... 3
Section 1.23 Educational Assistance Program........................................ 3
Section 1.24 Employee Assistance Program........................................... 3
Section 1.25 ERISA................................................................. 3
Section 1.26 Executive Bonus Plan.................................................. 3
Section 1.27 FMLA.................................................................. 3
Section 1.28 Foreign Plan.......................................................... 3
Section 1.29 Fringe Benefit Plans.................................................. 3
i
3
PAGE
----
Section 1.30 FSA/Dependent Reimbursement Plan...................................... 4
Section 1.31 FSA/Medical Reimbursement Plan........................................ 4
Section 1.32 General Assignment and Assumption Agreement........................... 4
Section 1.33 Group Insurance Policies.............................................. 4
Section 1.34 Group Life Plan....................................................... 4
Section 1.35 HCFA.................................................................. 4
Section 1.36 Health and Welfare Plans.............................................. 4
Section 1.37 Health Plans.......................................................... 4
Section 1.38 HMO................................................................... 4
Section 1.39 HMO Agreements........................................................ 4
Section 1.40 IPO................................................................... 4
Section 1.41 IPO Closing Date...................................................... 4
Section 1.42 IPO Registration Statement............................................ 5
Section 1.43 IRS................................................................... 5
Section 1.44 Leave of Absence Plans................................................ 5
Section 1.45 Liabilities........................................................... 5
Section 1.46 Long-Term Care Plan................................................... 5
Section 1.47 Long-Term Disability Plan............................................. 5
Section 1.48 Master Transitional Services Agreement................................ 5
Section 1.49 Material Feature...................................................... 5
Section 1.50 Nasdaq................................................................ 5
Section 1.51 Option................................................................ 5
Section 1.52 Outsource............................................................. 6
Section 1.53 Luminent.............................................................. 6
Section 1.54 Luminent Business..................................................... 6
Section 1.55 Luminent Claims....................................................... 6
Section 1.56 Luminent Employee..................................................... 6
Section 1.57 Luminent Group........................................................ 6
Section 1.58 Luminent Stock Value.................................................. 6
Section 1.59 Luminent Terminated Employee.......................................... 6
Section 1.60 Luminent Transferred Employee......................................... 6
Section 1.61 Participating Company................................................. 7
Section 1.62 Person................................................................ 7
4
PAGE
----
Section 1.63 Plan.................................................................. 7
Section 1.64 Post-Distribution Period.............................................. 7
Section 1.65 Premium Plan.......................................................... 7
Section 1.66 PTO................................................................... 7
Section 1.67 QDRO.................................................................. 7
Section 1.68 QMCSO................................................................. 8
Section 1.69 Rabbi Trust........................................................... 8
Section 1.70 Ratio................................................................. 8
Section 1.71 Record Date........................................................... 8
Section 1.72 Restricted Stock...................................................... 8
Section 1.73 Revenue............................................................... 8
Section 1.74 Sabbatical Plan....................................................... 8
Section 1.75 SEC................................................................... 8
Section 1.76 Section 125 Plan...................................................... 8
Section 1.77 Separation............................................................ 8
Section 1.78 Separation Agreement.................................................. 8
Section 1.79 Separation Date....................................................... 8
Section 1.80 Severance Plan........................................................ 9
Section 1.81 Short-Term Disability Plan............................................ 9
Section 1.82 Stock Plan............................................................ 9
Section 1.83 Stock Purchase Plan................................................... 9
Section 1.84 Subsidiary............................................................ 9
Section 1.85 Tax Sharing Agreement................................................. 9
Section 1.86 Unemployment Insurance Program........................................ 9
Section 1.87 Workers' Compensation Plan............................................ 9
ARTICLE II: GENERAL PRINCIPLES................................................ 10
Section 2.1 Assumption of Luminent Liabilities.................................... 10
Section 2.2 Establishment of Luminent Plans....................................... 10
Section 2.3 Luminent Under No Obligation to Maintain Plans........................ 11
Section 2.4 Luminent's Participation in MRV Plans................................. 11
Section 2.5 Terms of Participation by Luminent Transferred Employees in
Luminent Plans........................................................ 12
5
PAGE
----
Section 2.6 Benefits Committee and Dispute Resolution............................. 12
Section 2.7 Foreign Plans......................................................... 13
ARTICLE III: DEFINED CONTRIBUTION PLAN.......................................... 13
Section 3.1 401(k) Plan........................................................... 13
ARTICLE IV: NON-QUALIFIED PLAN.................................................. 14
Section 4.1 Deferred Compensation Plan............................................ 14
ARTICLE V: HEALTH AND WELFARE PLANS............................................ 14
Section 5.1 Health Plans as of the Distribution Date.............................. 14
Section 5.2 Health Plans from the Separation Date through the Distribution
Date.................................................................. 15
Section 5.3 Group Life Plan....................................................... 16
Section 5.4 AD&D Plan............................................................. 16
Section 5.5 Severance Plan........................................................ 17
Section 5.6 Sabbatical Plan....................................................... 17
Section 5.7 Disability Plans...................................................... 17
Section 5.8 Long-Term Disability Plan............................................. 18
Section 5.9 Business Travel Accident Insurance.................................... 18
Section 5.10 Long-Term Care Plan................................................... 18
Section 5.11 Section 125 Plan...................................................... 18
Section 5.12 COBRA................................................................. 19
Section 5.13 Leave of Absence Plans and FMLA....................................... 19
Section 5.14 Workers' Compensation Plan............................................ 20
Section 5.15 Administrative Services............................................... 21
ARTICLE VI: EQUITY AND OTHER COMPENSATION....................................... 21
Section 6.1 Bonus Plan............................................................ 21
Section 6.2 Executive Bonus Plan.................................................. 21
Section 6.3 MRV Options........................................................... 22
Section 6.4 MRV Restricted Stock.................................................. 22
Section 6.5 Stock Purchase Plan................................................... 23
Section 6.6 Administrative Services............................................... 23
ARTICLE VII: FRINGE AND OTHER BENEFITS........................................... 23
Section 7.1 Employee Assistance Program........................................... 23
Section 7.2 Educational Assistance Program........................................ 23
6
PAGE
----
Section 7.3 Other Benefits........................................................ 24
Section 7.4 Administrative Services............................................... 24
ARTICLE VIII: ADMINISTRATIVE PROVISIONS............................................ 24
Section 8.1 Master Transitional Services Agreement................................ 24
Section 8.2 Payment of Liabilities, Plan Expenses and Related Matters............. 24
Section 8.3 Transitional Staffing Services........................................ 25
Section 8.4 Sharing of Participant Information.................................... 25
Section 8.5 Reporting and Disclosure Communications to Participants............... 25
Section 8.6 Audits Regarding Vendor Contracts..................................... 26
Section 8.7 Employee Identification Numbers....................................... 26
Section 8.8 Beneficiary Designation............................................... 26
Section 8.9 Requests for IRS and DOL Opinions..................................... 26
Section 8.10 Fiduciary Matters..................................................... 26
Section 8.11 Consent of Third Parties.............................................. 26
Section 8.12 MRV Intranet.......................................................... 27
Section 8.13 Tax Cooperation....................................................... 27
ARTICLE IX: EMPLOYMENT-RELATED MATTERS.......................................... 27
Section 9.1 Terms of Luminent Employment.......................................... 27
Section 9.2 HR Data Support Systems............................................... 27
Section 9.3 Non-Solicitation of Employees......................................... 27
Section 9.4 Employment of Employees with U.S. Work Visas.......................... 28
Section 9.5 Confidentiality and Proprietary Information........................... 28
Section 9.6 PTO................................................................... 28
Section 9.7 Personnel Records..................................................... 28
Section 9.8 Medical Records....................................................... 28
Section 9.9 Unemployment Insurance Program........................................ 29
Section 9.10 Non-Termination of Employment; No Third-Party Beneficiaries........... 29
Section 9.11 Employment Litigation................................................. 29
ARTICLE X: GENERAL PROVISIONS.................................................. 30
Section 10.1 Effect if Separation, IPO and/or Distribution Does Not Occur.......... 30
Section 10.2 Relationship of Parties............................................... 30
Section 10.3 Affiliates............................................................ 30
Section 10.4 Incorporation of Separation Agreement Provisions...................... 30
7
PAGE
----
Section 10.5 Governing Law......................................................... 30
Section 10.6 Assignment............................................................ 30
Section 10.7 Severability.......................................................... 30
Section 10.8 Interpretation........................................................ 31
Section 10.9 Amendment............................................................. 31
Section 10.10 Termination........................................................... 31
Section 10.11 Conflict.............................................................. 31
Section 10.12 Counterparts.......................................................... 31
8
EMPLOYEE MATTERS AGREEMENT
This EMPLOYEE MATTERS AGREEMENT is entered into on _________, 2000,
between MRV Communications, Inc., a Delaware corporation, and Luminent, Inc., a
Delaware corporation. Capitalized terms used herein (other than the formal names
of MRV Plans (as defined below) and related trusts of MRV) and not otherwise
defined, shall have the respective meanings assigned to them in Article I
hereof.
WHEREAS, the Board of Directors of MRV has determined that it is in the
best interests of MRV and its shareholders to separate MRV's existing businesses
into two (2) independent businesses;
WHEREAS, in furtherance of the foregoing, MRV and Luminent have agreed
to enter into this Agreement to allocate between them Assets, Liabilities and
responsibilities with respect to certain employee compensation, benefit plans,
programs and arrangements, and certain employment matters; and
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Wherever used in this Agreement, the following terms shall have the
meanings indicated below, unless a different meaning is plainly required by the
context. The singular shall include the plural, unless the context indicates
otherwise. Headings of sections are used for convenience of reference only, and
in case of conflict, the text of this Agreement, rather than such headings,
shall control.
Section 1.1 MRV. "MRV" means MRV Communications, Inc., a Delaware corporation.
In all such instances in which MRV is referenced in this Agreement, it shall
also be deemed to include a reference to each member of the MRV Group, unless it
specifically provides otherwise; MRV shall be solely responsible to Luminent for
ensuring that each member of the MRV Group complies with the applicable terms of
this Agreement.
Section 1.2 MRV Employee. "MRV Employee" means an individual who, on the
Distribution Date, is: (a) either actively employed by, or on leave of absence
from, the MRV Group; (b) a MRV Terminated Employee; or (c) an employee or group
of employees designated as MRV Employees by MRV and Luminent, by mutual
agreement.
Section 1.3 MRV Group. "MRV Group" means MRV and each Subsidiary and Affiliate
of MRV (or any predecessor organization thereof).
Section 1.4 MRV Stock Value. "MRV Stock Value" means the closing per-share price
of MRV common stock as listed on the Nasdaq on the last trading day before the
Distribution Date.
1
9
Section 1.5 MRV Terminated Employee. "MRV Terminated Employee" means any
individual who is a former employee of the MRV Group and who, on the
Distribution Date, is not a Luminent Transferred Employee.
Section 1.6 401(k) Plan. "401(k) Plan," when immediately preceded by "MRV,"
means the MRV Communications, Inc. 401(k) Plan, a defined contribution plan.
When immediately preceded by "Luminent," "401(k) Plan" means the defined
contribution plan to be established by Luminent pursuant to Section 2.2 and
Article III.
Section 1.7 AD&D Plan. "AD&D Plan," when immediately preceded by "MRV," means
the MRV Accidental Death and Dismemberment ("AD&D") Plan. When immediately
preceded by "Luminent," "AD&D Plan" means the accidental death and dismemberment
plan to be established by Luminent pursuant to Sections 2.2 and 5.4.
Section 1.8 Affiliate. "Affiliate" means, with respect to any specified Person,
means any entity that Controls, is Controlled by, or is under common Control
with such Person. For this purpose, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such entity, whether through ownership of voting securities or other
interests, by control, or otherwise.
Section 1.9 Agreement. "Agreement" means this Employee Matters Agreement,
including all the Schedules hereto, and all amendments made hereto from time to
time.
Section 1.10 Ancillary Agreements. "Ancillary Agreements" means all of the
underlying agreements, documents and instruments referred to, contemplated by,
or made a part of the Separation Agreement.
Section 1.11 ASO Contracts. "ASO Contracts" is defined in Subsection 5.1(c)(i)
and Schedule 5.1(c)(i).
Section 1.12 Assets. "Assets" is defined in Section 4.4 of the General
Assignment and Assumption Agreement.
Section 1.13 Benefits Committee. "Benefits Committee" means the benefits
committee established, implemented and operated pursuant to Section 2.6.
Section 1.14 Bonus Plan. "Bonus Plan," when immediately preceded by "MRV," means
the MRV Bonus Plan; provided, however, with respect to Luminent Employees in the
MRV Bonus Plan, that "Bonus Plan" means the bonus plan as established and
implemented with respect to the Luminent Employees. When immediately preceded by
"Luminent," "Bonus Plan" means the bonus plan to be established by Luminent
pursuant to Sections 2.2 and 6.1.
Section 1.15 Business Travel Accident Insurance. "Business Travel Accident
Insurance," when immediately preceded by "MRV," means the policy or policies
covering MRV Business Travel Accident Insurance in the U.S. and to the extent
applicable, outside the U.S. When immediately preceded by "Luminent," "Business
Travel Accident Insurance" means the policy or policies covering the business
travel accident insurance to be established by Luminent pursuant to Sections 2.2
and 5.9.
Section 1.16 COBRA. "COBRA" means the continuation coverage requirements for
"group health plans" under Title X of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended from time to time, and as codified in
Code Section 4980B and ERISA Sections 601 through 608.
10
Section 1.17 Code. "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
Section 1.18 Deferred Compensation Plan. "Deferred Compensation Plan," when
immediately preceded by "MRV," means the MRV Deferred Compensation Plan. When
immediately preceded by "Luminent," "Deferred Compensation Plan" means the
deferred compensation plan to be established by Luminent pursuant to Section 2.2
and Article IV.
Section 1.19 Disability Plan. "Disability Plan," when immediately preceded by
"MRV," means the MRV Disability Plan which consists of the MRV Short-Term
Disability Plan and the MRV Long-Term Disability Plan. When immediately preceded
by "Luminent," "Disability Plan" means the Luminent Short-Term Disability Plan
and the Luminent Long-Term Disability Plan, to be established by Luminent
pursuant to Sections 2.2 and 5.7.
Section 1.20 Distribution. "Distribution" means MRV's pro rata distribution to
the holders of its common stock, $0.001 par value, 6 to 12 months following the
IPO, of all the shares of Luminent common stock owned by MRV.
Section 1.21 Distribution Date. "Distribution Date" means the date that the
Distribution is effective.
Section 1.22 DOL. "DOL" means the United States Department of Labor.
Section 1.23 Educational Assistance Program. "Educational Assistance Program,"
when immediately preceded by "MRV," means the MRV Educational Assistance
Program. When immediately preceded by "Luminent," "Educational Assistance
Program" means the educational assistance program to be established by Luminent
pursuant to Sections 2.2 and 7.2.
Section 1.24 Employee Assistance Program. "Employee Assistance Program," when
immediately preceded by "MRV," means the MRV Employee Assistance Program. When
immediately preceded by "Luminent," "Employee Assistance Program" means the
employee assistance program to be established by Luminent pursuant to Sections
2.2 and 7.1.
Section 1.25 ERISA. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
Section 1.26 Executive Bonus Plan. "Executive Bonus Plan," when immediately
preceded by "MRV," means the MRV Executive Bonus Program. When immediately
preceded by "Luminent," "Executive Bonus Plan" means the executive bonus plan to
be established by Luminent pursuant to Sections 2.2 and 6.2.
Section 1.27 FMLA. "FMLA" means the Family and Medical Leave Act of 1993, as
amended from time to time.
Section 1.28 Foreign Plan. "Foreign Plan," when immediately preceded by "MRV,"
means a Plan maintained by the MRV Group for the benefit of its employees
outside the U.S. When immediately preceded by "Luminent," "Foreign Plan" means a
Plan to be established by Luminent for the benefit of its employees outside the
U.S.
Section 1.29 Fringe Benefit Plans. "Fringe Benefit Plans," when immediately
preceded by "MRV," means the MRV employee assistance program, educational
assistance program and other fringe benefit plans, programs and arrangements,
sponsored and maintained by MRV (as set forth in Article VII and Schedule 7.8).
When immediately preceded by "Luminent," "Fringe
11
Benefit Plans" means the fringe benefit plans, programs and arrangements to be
established by Luminent pursuant to Section 2.2 and Article VII.
Section 1.30 FSA/Dependent Reimbursement Plan. "FSA/Dependent Reimbursement
Plan," when immediately preceded by "MRV," means the MRV FSA/Dependent
Reimbursement Plan. When immediately preceded by "Luminent," "FSA/Dependent
Reimbursement Plan" means the dependent care assistance reimbursement plan to be
established by Luminent pursuant to Sections 2.2 and 5.11.
Section 1.31 FSA/Medical Reimbursement Plan. "FSA/Medical Reimbursement Plan,"
when immediately preceded by "MRV," means the MRV FSA/Medical Reimbursement
Plan. When immediately preceded by "Luminent," "FSA/Medical Reimbursement Plan"
means the medical expense reimbursement plan to be established by Luminent
pursuant to Sections 2.2 and 5.11.
Section 1.32 General Assignment and Assumption Agreement. "General Assignment
and Assumption Agreement" means the Ancillary Agreement attached as Exhibit C to
the Separation Agreement.
Section 1.33 Group Insurance Policies. "Group Insurance Policies" is defined in
Subsection 5.1(c)(ii) and Schedule 5.1(c)(ii).
Section 1.34 Group Life Plan. "Group Life Plan," when immediately preceded by
"MRV," means the MRV Group Life Plan. When immediately preceded by "Luminent,"
"Group Life Plan" means the group life plan to be established by Luminent
pursuant to Sections 2.2 and 5.3.
Section 1.35 HCFA. "HCFA" means the United States Health Care Financing
Administration.
Section 1.36 Health and Welfare Plans. "Health and Welfare Plans," when
immediately preceded by "MRV," means the MRV Health Plans, the MRV Section 125
Plan, and the health and welfare plans listed on Schedule 5.2(a) established and
maintained by MRV for the benefit of eligible employees of the MRV Group, and
such other welfare plans or programs as may apply to such employees as of the
Distribution Date. When immediately preceded by "Luminent," "Health and Welfare
Plans" means the Luminent Health Plans, the Luminent Section 125 Plan, and the
health and welfare plans to be established by Luminent pursuant to Section 2.2,
Article V, and Schedule 5.1(a).
Section 1.37 Health Plans. "Health Plans," when immediately preceded by "MRV,"
means the medical, HMO, vision, and dental plans and any similar or successor
Plans. When immediately preceded by "Luminent," "Health Plans" means the
medical, HMO, vision and dental plans to be established by Luminent pursuant to
Section 2.2 and Article V.
Section 1.38 HMO. "HMO" means a health maintenance organization that provides
benefits under the MRV Health Plans or the Luminent Health Plans.
Section 1.39 HMO Agreements. "HMO Agreements" is defined in Subsection
5.1(c)(iii) and Schedule 5.1(c)(iii).
Section 1.40 IPO. "IPO" means the initial public offering of Luminent common
stock pursuant to a registration statement on Form S-1 pursuant to the
Securities Act of 1933, as amended.
Section 1.41 IPO Closing Date. "IPO Closing Date" means the closing of the IPO,
which is currently scheduled to occur prior to ____________.
12
Section 1.42 IPO Registration Statement. "IPO Registration Statement" means the
registration statement on Form S-1 pursuant to the Securities Act of 1933 as
amended, to be filed with the SEC registering the shares of common stock of
Luminent to be issued in the IPO, together with all amendments thereto.
Section 1.43 IRS. "IRS" means the United States Internal Revenue Service.
Section 1.44 Leave of Absence Plans. "Leave of Absence Plans," when immediately
preceded by "MRV," means the personal, medical/disability, military, and FMLA
leave offered from time to time under the personnel policies and practices of
MRV. When immediately preceded by "Luminent," "Leave of Absence Plans" means the
leave of absence programs to be established by Luminent pursuant to Sections 2.2
and 5.12.
Section 1.45 Liabilities. "Liabilities" means all debts, liabilities,
guarantees, assurances, commitments, and obligations, whether fixed, contingent
or absolute, asserted or unasserted, matured or unmatured, liquidated or
unliquidated, accrued or not accrued, known or unknown, due or to become due,
whenever or however arising (including, without limitation, whether arising out
of any Contract or tort based on negligence or strict liability) and whether or
not the same would be required by generally accepted accounting principles to be
reflected in financial statements or disclosed in the notes thereto. For this
purpose, "Contract" means any contract, agreement, lease, license, sales order,
purchase order, instrument or other commitment that is binding on any Person or
any part of its property under applicable law.
Section 1.46 Long-Term Care Plan. "Long-Term Care Plan," when immediately
preceded by "MRV," means the MRV Long-Term Care Plan. When immediately preceded
by "Luminent," "Long-Term Care Plan" means the long-term care plan, if any, that
may be established by Luminent pursuant to Sections 2.2 and 5.11.
Section 1.47 Long-Term Disability Plan. "Long-Term Disability Plan," when
immediately preceded by "MRV," means the MRV Long-Term Disability Plan. When
immediately preceded by "Luminent," Long-Term Disability Plan" means the
long-term disability plan to be established by Luminent pursuant to Section 2.2
and Subsection 5.8.
Section 1.48 Master Transitional Services Agreement. "Master Transitional
Services Agreement" means the Ancillary Agreement which is Exhibit G to the
Separation Agreement.
Section 1.49 Material Feature. "Material Feature" means any feature of a Plan
that could reasonably be expected to be of material importance, in the
aggregate, to the sponsoring employer or the participants (or their dependents
or beneficiaries) of that Plan, which could include, depending on the type and
purpose of the particular Plan, the class or classes of employees eligible to
participate in such Plan, the nature, type, form, source, and level of benefits
provided under such Plan, the amount or level of contributions, if any, required
to be made by participants (or their dependents or beneficiaries) to such Plan,
and the costs and expenses incurred by the sponsoring employer or Participating
Companies for implementing and/or maintaining such Plan.
Section 1.50 Nasdaq. "Nasdaq" means the Nasdaq National Market.
Section 1.51 Option. "Option," when immediately preceded by "MRV," means an
option to purchase MRV common stock pursuant to a Stock Plan. When immediately
preceded by "Luminent," "Option" means an option to purchase Luminent common
stock pursuant to a Stock Plan.
13
Section 1.52 Outsource. "Outsource" is defined in Section 5.14(c).
Section 1.53 Luminent. "Luminent" means Luminent, Inc., a Delaware corporation.
In all such instances in which Luminent is referred to in this Agreement, it
shall also be deemed to include a reference to each member of the Luminent
Group, unless it specifically provides otherwise; Luminent shall be solely
responsible to MRV for ensuring that each member of the Luminent Group complies
with the applicable terms of this Agreement.
Section 1.54 Luminent Business. "Luminent Business" means the hand held
computing business and related businesses and operations as described in the IPO
Registration Statement.
Section 1.55 Luminent Claims. "Luminent Claims" is defined in Subsection
5.14(a).
Section 1.56 Luminent Employee. "Luminent Employee" means any individual who is:
(a) either actively employed by, or on leave of absence from, the Luminent Group
on the Separation Date; (b) either actively employed by, or on leave of absence
from, the MRV Group as either part of a work group or organization, or common
support function that, at any time after the Separation Date and before the
Distribution Date, moves to the employ of the Luminent Group from the employ of
the MRV Group; (c) a Luminent Terminated Employee; (d) employed by the Luminent
Group; (e) any other employee or group of employees designated as Luminent
Employees (as of the specified date) by MRV and Luminent by mutual agreement; or
(f) an alternate payee under a QDRO, alternate recipient under a QMCSO,
beneficiary, covered dependent, or qualified beneficiary (as such term is
defined under COBRA), in each case, of an employee or former employee, described
in Subsections 1.56(a) through (e) with respect to that employee's or former
employee's benefit under the applicable Plan(s) (unless specified otherwise in
this Agreement, such an alternate payee, alternate recipient, beneficiary,
covered dependent, or qualified beneficiary shall not otherwise be considered a
Luminent Employee with respect to any benefits he or she accrues or accrued
under any applicable Plan(s), unless he or she is a Luminent Employee by virtue
of Subsections 1.56(a) through (e)).
Section 1.57 Luminent Group. "Luminent Group" means Luminent and each Subsidiary
and Affiliate of Luminent immediately after the Separation Date and each Person
that becomes a Subsidiary or Affiliate of Luminent after the Separation Date.
Section 1.58 Luminent Stock Value. "Luminent Stock Value" means the opening
per-share price of Luminent common stock as listed on Nasdaq, as applicable, on
the first trading day after the Distribution Date.
Section 1.59 Luminent Terminated Employee. "Luminent Terminated Employee" means
any individual who is: (a) a former employee of the MRV Group who was terminated
from the Luminent Business on or before the Separation Date; or (b) a former
employee of the Luminent Group. Notwithstanding the foregoing, "Luminent
Terminated Employee" shall not, unless otherwise expressly provided to the
contrary in this Agreement, include: (a) an individual who is a MRV Employee at
the Distribution Date; or (b) an individual who is otherwise a Luminent
Terminated Employee, but who is subsequently employed by the MRV Group prior to
the Distribution Date.
Section 1.60 Luminent Transferred Employee. "Luminent Transferred Employee"
means any individual who, as of the Distribution Date, is: (a) either actively
employed by, or on a leave of absence from, the Luminent Group; (b) a Luminent
Terminated Employee; (c) an employee or group of employees designated by MRV and
Luminent, by mutual agreement, as Luminent
14
Transferred Employees; or (d) an alternate payee under a QDRO, alternate
recipient under a QMCSO, beneficiary, covered dependent, or qualified
beneficiary (as such term is defined under COBRA), in each case, of an employee
or former employee, described in Subsections 1.56(a) through (c) with respect to
that employee's or former employee's benefit under the applicable Plan(s)
(unless specified otherwise in this Agreement, such an alternate payee,
alternate recipient, beneficiary, covered dependent, or qualified beneficiary
shall not otherwise be considered a Luminent Transferred Employee with respect
to any benefits he or she accrues or accrued under any applicable Plan(s),
unless he or she is a Luminent Transferred Employee by virtue of Subsections
1.60(a) through (c)). An employee may be a Luminent Transferred Employee
pursuant to this Section regardless of whether such employee is, as of the
Distribution Date, alive, actively employed, on a temporary leave of absence
from active employment, on layoff, terminated from employment, retired or on any
other type of employment or post-employment status relative to a MRV Plan, and
regardless of whether, as of the Distribution Date, such employee is then
receiving any coverage under or benefits from a MRV Plan.
Section 1.61 Participating Company. "Participating Company" means: (a) MRV; (b)
any Person (other than an individual) that MRV has approved for participation
in, has accepted participation in, and which is participating in, a Plan
sponsored by MRV; and (c) any Person (other than an individual) which, by the
terms of such Plan, participates in such Plan or any employees of which, by the
terms of such Plan, participate in or are covered by such Plan.
Section 1.62 Person. "Person" means an individual, a partnership, a corporation,
a limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, and a governmental entity or any
department, agency or political subdivision thereof.
Section 1.63 Plan. "Plan" means any plan, policy, program, payroll practice,
arrangement, contract, trust, insurance policy, or any agreement or funding
vehicle providing compensation or benefits to employees, former employees,
directors or consultants of MRV or Luminent.
Section 1.64 Post-Distribution Period. "Post-Distribution Period" means, for
each designated Plan, the period beginning as of the Distribution Date and
ending on the date that no member of the Luminent Group is using MRV benefit
delivery and administrative services with respect to that Plan.
Section 1.65 Premium Plan. "Premium Plan," when immediately preceded by "MRV,"
means the MRV Medical/Dental Pre-Tax Premium Plan, the vehicle by which
employees participating in the MRV Health and Welfare Plans can contribute their
portion of the premium payments with pre-tax dollars. When immediately preceded
by "Luminent," "Premium Plan" means the medical/dental pre-tax premium plan to
be established by Luminent pursuant to Sections 2.2 and 5.11.
Section 1.66 PTO. "PTO," when immediately preceded by "MRV," means the MRV
Personal Time Off Policy. When immediately preceded by "Luminent," "PTO" means
the Luminent personal time off policy to be established by Luminent pursuant to
Sections 2.2 and 9.6.
Section 1.67 QDRO. "QDRO" means a domestic relations order which qualifies under
Code Section 414(p) and ERISA Section 206(d) and which creates or recognizes an
alternate payee's right to, or assigns to an alternate payee, all or a portion
of the benefits payable to a participant under the MRV 401(k) Plan.
15
Section 1.68 QMCSO. "QMCSO" means a medical child support order which qualifies
under ERISA Section 609(a) and which creates or recognizes the existence of an
alternate recipient's right to, or assigns to an alternate recipient the right
to, receive benefits for which a participant or beneficiary is eligible under
any of the Health Plans.
Section 1.69 Rabbi Trust. "Rabbi Trust," when immediately preceded by "MRV,"
means the rabbi trust established for purposes of holding assets under the MRV
Deferred Compensation Plan. When immediately preceded by "Luminent," "Rabbi
Trust" means the grantor trust to be established by Luminent pursuant to Section
4.1(a).
Section 1.70 Ratio. "Ratio" means the ratio determined by dividing the Luminent
Stock Value by the MRV Stock Value.
Section 1.71 Record Date. "Record Date" means the close of business on the date
to be determined by the Board of Directors of MRV as the record date for
determining the stockholders of MRV entitled to receive shares of common stock
of Luminent in the Distribution.
Section 1.72 Restricted Stock. "Restricted Stock," when immediately preceded by
"MRV," means shares of MRV common stock that are subject to transfer
restrictions or to employment and/or performance vesting conditions, pursuant to
a MRV Stock Plan. When immediately preceded by "Luminent," "Restricted Stock"
means shares of Luminent common stock that are subject to transfer restrictions
or to employment and/or performance vesting conditions, pursuant to a Luminent
Stock Plan.
Section 1.73 Revenue. "Revenue" means net revenue as determined in accordance
with generally accepted accounting principles.
Section 1.74 Sabbatical Plan. "Sabbatical Plan," when immediately preceded by
"MRV," means the MRV Sabbatical Plan. When immediately preceded by "Luminent,"
"Sabbatical Plan" means the sabbatical plan, if any, to be established by
Luminent pursuant to Sections 2.2 and 5.6.
Section 1.75 SEC. "SEC" means the United States Securities and Exchange
Commission.
Section 1.76 Section 125 Plan. "Section 125 Plan," when immediately preceded by
"MRV," means the MRV Premium Plan, the MRV FSA/Dependent Reimbursement Plan, and
the MRV FSA/Medical Reimbursement Plan. When immediately preceded by "Luminent,"
"Section 125 Plan" means the Luminent Premium Plan, the Luminent FSA/Dependent
Reimbursement Plan, and the Luminent FSA/Medical Reimbursement Plan to be
established by Luminent pursuant to Sections 2.2 and 5.11.
Section 1.77 Separation. "Separation" means the contribution and transfer from
MRV to Luminent, and Luminent's receipt and assumption of, directly or
indirectly, substantially all of the Assets and Liabilities currently associated
with the Luminent Business and the stock, investments or similar interests
currently held by MRV in subsidiaries and other entities that conduct such
business.
Section 1.78 Separation Agreement. "Separation Agreement" means the Master
Separation and Distribution Agreement, dated as of _________, 2000, of which
this is Exhibit E thereto.
Section 1.79 Separation Date. "Separation Date" means the effective date and
time of each transfer of property, assumption of liability, license,
undertaking, or agreement in connection with the Separation which shall, with
respect to non- Foreign Plans and U.S. employees, be
16
12:01 a.m., Pacific Time, ____________, 2000, and/or such other date(s) as may
be fixed by the Board of Directors of MRV.
Section 1.80 Severance Plan. "Severance Plan," when immediately preceded by
"MRV," means the MRV Severance Plan. When immediately preceded by "Luminent,"
"Severance Plan" means the severance program, if any, to be established by
Luminent pursuant to Sections 2.2 and 5.5.
Section 1.81 Short-Term Disability Plan. "Short-Term Disability Plan," when
immediately preceded by "MRV," means the MRV Short-Term Disability Plan. When
immediately preceded by "Luminent," Short-Term Disability Plan" means the
short-term disability plan to be established by Luminent pursuant to Section 2.2
and Subsection 5.7(a).
Section 1.82 Stock Plan. "Stock Plan," when immediately preceded by "MRV," means
any plan, program, or arrangement, other than the Luminent Stock Option
Agreement, pursuant to which employees and other service providers hold Options,
MRV Restricted Stock, or other MRV equity incentives. When immediately preceded
by "Luminent," "Stock Plan" means substantially similar plans, programs, or
arrangements, to be established by Luminent pursuant to Section 2.2 and Article
VI.
Section 1.83 Stock Purchase Plan. "Stock Purchase Plan," when immediately
preceded by "MRV," means the MRV Employee Stock Purchase Plan. When immediately
preceded by "Luminent," "Stock Purchase Plan" means the employee stock purchase
plan to be established by Luminent pursuant to Sections 2.2 and 6.5.
Section 1.84 Subsidiary. "Subsidiary" of any person means a corporation or other
organization, whether incorporated or unincorporated, of which at least a
majority of the securities or interest having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization, is directly or indirectly owned or controlled by such Person or by
any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; provided, however that no Person that is not directly or
indirectly wholly-owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control that Person. Unless the context otherwise requires, reference to MRV and
its Subsidiaries shall not include the subsidiaries of MRV that will be
transferred to Luminent after giving effect to the Separation.
Section 1.85 Tax Sharing Agreement. "Tax Sharing Agreement" means the Ancillary
Agreement, which is Exhibit F to the Separation Agreement.
Section 1.86 Unemployment Insurance Program. "Unemployment Insurance Program,"
when immediately preceded by "MRV," means the group unemployment insurance
policies purchased by MRV from time to time. When immediately preceded by
"Luminent," "Unemployment Insurance Program" means any group unemployment
insurance program to be established by Luminent pursuant to Section 9.9.
Section 1.87 Workers' Compensation Plan. "Workers' Compensation Plan" when
immediately preceded by "MRV" means the MRV Workers' Compensation Plan,
comprised of the various arrangements established by a member of the MRV Group
to comply with the workers' compensation requirements of the states in which the
MRV Group conducts business. When
17
immediately preceded by "Luminent," "Workers' Compensation Plan" means the
workers' compensation program to be established by Luminent pursuant to Section
5.14.
ARTICLE II
GENERAL PRINCIPLES
Section 2.1 Assumption of Luminent Liabilities. Except as specified otherwise in
this Agreement or as mutually agreed upon by Luminent and MRV from time to time,
effective as of Separation Date, Luminent hereby assumes and agrees to pay,
perform, fulfill and discharge, in accordance with their respective terms, all
of the following: (a) all Liabilities of, or relating to, Luminent Employees or
Luminent Transferred Employees, in each case relating to, arising out of, or
resulting from future, present or former employment with the Luminent Business
(including Liabilities relating to, arising out of, or resulting from MRV Plans
and Luminent Plans); (b) all Liabilities relating to, arising out of, or
resulting from any other actual or alleged employment relationship with the
Luminent Group; and (c) all other Liabilities relating to, arising out of, or
resulting from obligations, liabilities and responsibilities expressly assumed
or retained by the Luminent Group, or a Luminent Plan pursuant to this
Agreement. Except as specified otherwise in this Agreement or as otherwise
mutually agreed upon by MRV and Luminent from time to time, MRV shall transfer
to Luminent amounts equal to trust assets, insurance reserves, and other related
assets as consistent with the applicable Plan transition that relates to, arises
out of, or results from Luminent's pro rata interest in each MRV Plan.
Section 2.2 Establishment of Luminent Plans.
(a) Health and Welfare Plans. Except as specified otherwise in this
Agreement, effective as of the Distribution Date (or such other date(s) as MRV
and Luminent may mutually agree), Luminent shall adopt the Luminent Health and
Welfare Plans. Except as otherwise specified in this Agreement, to the extent
administratively and financially practicable, each of the foregoing Luminent
Plans as in effect as of the Distribution Date (or such other date(s) as MRV and
Luminent may mutually agree), shall be comparable in the aggregate in all
Material Features to the corresponding MRV Plan as in effect as of such agreed
upon date.
(b) 401(k) and Fringe Benefit Plans. Except as specified otherwise in
this Agreement, effective as of the Distribution Date (or such other date(s) as
MRV and Luminent may mutually agree), Luminent shall adopt the Luminent 401(k)
Plan and the Luminent Fringe Benefit Plans. Except as otherwise specified in
this Agreement, to the extent administratively and financially practicable, each
of the foregoing Luminent Plans as in effect as of the Distribution Date (or
such other date(s) as MRV and Luminent may mutually agree), shall be comparable
in the aggregate in all Material Features to the corresponding MRV Plan as in
effect as of such agreed upon date.
(c) Equity and Other Compensation. Except as specified otherwise in this
Agreement, effective on or before the IPO (or such other date(s) as MRV and
Luminent may mutually agree), Luminent shall adopt the Luminent Stock Plans.
Except as specified otherwise in this Agreement, effective as of Distribution
Date (or such other date(s) as MRV and Luminent may mutually agree), Luminent
shall adopt the Luminent Executive Bonus Plan and the Luminent Bonus Plan.
Effective on or before the IPO (or such other date as MRV and Luminent may
mutually agree), Luminent shall adopt the Luminent Stock Purchase Plan. Each of
the
18
foregoing Luminent Plans as in effect as of the IPO (or such other date(s) as
MRV and Luminent may mutually agree), shall be comparable in the aggregate in
all Material Features to the corresponding MRV Plan as in effect on the IPO.
(d) Other Plans. Except as otherwise specified in this Agreement,
effective as of the Separation Date (or such other date(s) as MRV and Luminent
may mutually agree), Luminent shall adopt certain Luminent Plans that are
specifically tied to its payroll practices, including, without limitation, a
Short-Term Disability Plan, a PTO Plan and a Deferred Compensation Plan.
Luminent shall also adopt a Section 125 Plan, effective as of _____________,
2000.
Section 2.3 Luminent Under No Obligation to Maintain Plans. Except as specified
otherwise in this Agreement, nothing in this Agreement shall preclude Luminent,
at any time after the Distribution Date, from amending, merging, modifying,
terminating, eliminating, reducing, or otherwise altering in any respect any
Luminent Plan, any benefit under any Luminent Plan or any trust, insurance
policy or funding vehicle related to any Luminent Plans, or any employment or
other service arrangement with Luminent Employees or vendors (to the extent
permitted by law).
Section 2.4 Luminent's Participation in MRV Plans.
(a) Participation in MRV Plans. Except as specified otherwise in this
Agreement or as MRV and Luminent may mutually agree, Luminent shall, until the
Distribution Date, continue to be a Participating Company in the MRV Plans to
the extent that Luminent has not established a corresponding Plan. Effective as
of any date on or after the Separation Date and before the Distribution Date (or
such other date(s) as MRV or Luminent may mutually agree), any member of the
Luminent Group not described in the preceding sentence may, at its request and
with the consent of MRV and Luminent, become a Participating Company in any or
all of the MRV Plans, to the extent that Luminent has not yet established a
corresponding Plan.
(b) MRV's General Obligations as Plan Sponsor. To the extent that
Luminent is a Participating Company in any MRV Plan, MRV shall continue to
administer, or cause to be administered, in accordance with its terms and
applicable law, such MRV Plan, and shall have the sole and absolute discretion
and authority to interpret the MRV Plan, as set forth therein. MRV shall not
amend any Material Feature of any MRV Plan in which Luminent is a Participating
Company, except to the extent: (i) such amendment would not materially affect
any coverage or benefits of Luminent Employees or Luminent Transferred Employees
under such Plan; (ii) Luminent shall consent to such amendment and such consent
shall not be unreasonably withheld; or (iii) such amendment is necessary or
appropriate to comply with applicable law.
(c) Luminent's General Obligations as Participating Company. Luminent
shall perform, with respect to its participation in the MRV Plans, the duties of
a Participating Company as set forth in each such Plan or any procedures adopted
pursuant thereto, including (without limitation): (i) assistance in the
administration of claims, to the extent requested by the claims administrator of
the applicable MRV Plan; (ii) full cooperation with MRV Plan auditors, benefit
personnel and benefit vendors; (iii) preservation of the confidentiality of all
financial arrangements MRV has or may have with any vendors, claims
administrators, trustees, service providers or any other entity or individual
with whom MRV has entered into an agreement relating to the MRV Plans; and (iv)
preservation of the confidentiality of participant information (including,
without limitation, health information in relation to FMLA leaves) to the extent
not specified otherwise in this Agreement.
19
(d) Termination of Participating Company Status. Except as otherwise may
be mutually agreed upon by MRV and Luminent, effective as of the Distribution
Date or such other date as Luminent establishes a corresponding Plan (as
specified in Section 2.2 or otherwise in this Agreement), Luminent shall
automatically cease to be a Participating Company in the corresponding MRV Plan.
Section 2.5 Terms of Participation by Luminent Transferred Employees in Luminent
Plans.
(a) Non-Duplication of Benefits. Except as specified otherwise in this
Agreement, as of the Distribution Date, or other later date that applies to the
particular Luminent Plan established thereafter, the Luminent Plans shall be,
with respect to Luminent Transferred Employees, in all respects the successors
in interest to, and shall not provide benefits that duplicate benefits provided
by, the corresponding MRV Plans. MRV and Luminent shall agree on methods and
procedures, including amending the respective Plan documents, to prevent
Luminent Employees from receiving duplicate benefits from the MRV Plans and the
Luminent Plans.
(b) Service Credit. Except as specified otherwise in this Agreement,
with respect to Luminent Transferred Employees, each Luminent Plan shall provide
that all service, all compensation and all other benefit-affecting
determinations that, as of the Distribution Date, were recognized under the
corresponding MRV Plan shall, as of the Distribution Date, receive full
recognition and credit and be taken into account under such Luminent Plan to the
same extent as if such items occurred under such Luminent Plan, except to the
extent that duplication of benefits would result. Notwithstanding the foregoing,
MRV and Luminent shall recognize service with either MRV or Luminent that was
recognized as of the Distribution Date, except to the extent provided in
Subsection 2.5(a) above. The service crediting provisions shall be subject to
any respectively applicable "service bridging," "break in service," "employment
date," or "eligibility date" rules under the Luminent Plans and the MRV Plans.
(c) Assumption of Liabilities. Except as specified otherwise in this
Agreement (including, without limitation, the exception applicable to self-
insured Health Plans), the provisions of this Agreement for the transfer of
Assets relating to MRV Plans to Luminent and/or the appropriate Luminent Plans
are based upon the understanding of the parties that Luminent and/or the
appropriate Luminent Plan will assume all Liabilities of the corresponding MRV
Plan to or relating to Luminent Transferred Employees, as provided for herein.
If any such Liabilities are not effectively assumed by Luminent and/or the
appropriate Luminent Plan, then the amount of transferred Assets shall be
recomputed accordingly, taking into account the retention of such Liabilities by
such MRV Plan, and Assets shall be transferred from Luminent and/or the
appropriate Luminent Plan to MRV and/or the appropriate MRV Plan so as to place
Luminent and/or the appropriate Luminent Plan in the position it would have been
in had the initial Asset transfer been made in accordance with such recomputed
amount of assets.
Section 2.6 Benefits Committee and Dispute Resolution. From the date of this
Agreement through the later of the Distribution Date or the end of the Post-
Distribution Period, as applicable, the management of the Plans shall be
conducted under the supervision of the Benefits Committee. The Benefits
Committee shall consist of an equal number of representatives from MRV and
Luminent as appointed by the MRV Senior Vice President, Human Resources, and the
functional equivalent of Luminent, and shall provide strategic oversight and
direction of the cohesive administration of the Plans. Issues that cannot be
resolved by the Benefits Committee
20
shall be decided, at the request of either party, by the Luminent Senior Vice
President, Human Resources (or the functional equivalent) (or his or her
authorized delegate) and the MRV Senior Vice President, Human Resources (or his
or her authorized delegate). After the exhaustion of the process, as specified
herein, any outstanding issue shall be resolved in accordance with Section 5.9
of the Separation Agreement, entitled "Dispute Resolution."
Section 2.7 Foreign Plans. Luminent and MRV each intend that matters, issues, or
Liabilities relating to, arising out of, or resulting from Foreign Plans and
non-U.S.-related employment matters be handled in a manner that is consistent
with comparable U.S. matters, issues, or Liabilities as reflected in this
Agreement (to the extent permitted by applicable law or as otherwise specified
in the applicable Section or Schedule thereto or Schedule 2.7).
ARTICLE III
DEFINED CONTRIBUTION PLAN
Section 3.1 401(k) Plan.
(a) 401(k) Plan Trust. Effective as of the Distribution Date (or such
other date as MRV and Luminent may mutually agree), Luminent shall establish, or
cause to be established, a separate trust, which is intended to be tax-qualified
under Code Section 401(a), to be exempt from taxation under Code Section
501(a)(1), and to form the Luminent 401(k) Plan.
(b) 401(k) Plan: Assumption of Liabilities and Transfer of Assets.
Effective as of the Distribution Date (or such other date as MRV and Luminent
may mutually agree): (i) the Luminent 401(k) Plan shall assume and be solely
responsible for all Liabilities relating to, arising out of, or resulting from
Luminent Transferred Employees under the MRV 401(k) Plan; and (ii) MRV shall
cause the accounts of the Luminent Transferred Employees under the MRV 401(k)
Plan that are held by its related trust to be transferred to the Luminent 401(k)
Plan and its related trust, and Luminent shall cause such transferred accounts
to be accepted by such Plan and its related trust. Effective as of the
Distribution Date (or such other date as MRV and Luminent may mutually agree),
Luminent shall use its commercially reasonable best efforts to enter into
agreements satisfactory to Luminent to accomplish such assumption and transfer,
the maintenance of the necessary participant records, the appointment of [NAME
OF TRUSTEE] as the initial trustee under the Luminent 401(k) Plan, and the
engagement of [NAME OF RECORDKEEPER] as the initial recordkeeper under the
Luminent 401(k) Plan. Luminent and MRV each agree to use their commercially
reasonable best efforts to accomplish this 401(k) Plan and related trust
spin-off.
(c) 401(k) Plan: Stock Considerations. As a result of the spin-off of
the MRV 401(k) Plan and to the extent that immediately prior to such time, the
MRV 401(k) Plan continues to consist of MRV employer securities, then the
resulting MRV 401(k) Plan and Luminent 401(k) Plan shall both consist in part of
MRV and Luminent employer securities. Luminent and MRV shall assume sole
responsibility for ensuring that their respective company stock funds, and
underlying employer securities held in each such fund, are maintained in
compliance with all requirements of the SEC.
(d) No Distribution to Luminent Transferred Employees. The MRV 401(k)
Plan and the Luminent 401(k) Plan shall provide that no distribution of account
balances shall be made to
21
any Luminent Transferred Employee on account of the Luminent Group ceasing to be
an Affiliate of the MRV Group as of the Distribution Date.
ARTICLE IV
NON-QUALIFIED PLAN
Section 4.1 Deferred Compensation Plan.
(a) Establishment of Luminent Rabbi Trust. Effective on or before the
Separation Date (or such other date as MRV and Luminent may mutually agree),
Luminent shall establish the Luminent Deferred Compensation Plan and the
Luminent Rabbi Trust.
(b) Allocation and Assumption of Liabilities. As of the date that
Luminent establishes the Luminent Deferred Compensation Plan, MRV shall
determine the amount of Liabilities under the MRV Deferred Compensation Plan,
attributable to Luminent Employees. As soon as administratively practicable
thereafter, MRV shall pay to Luminent or to the trustee of the Luminent Rabbi
Trust, as Luminent specifies, an amount of MRV's Assets equal to such
Liabilities. Coincident with the receipt of such transfer of Assets, Luminent
shall assume all responsibilities and obligations relating to, arising out of,
or resulting from such Liabilities.
(c) Participation in Deferred Compensation Plans. Effective as of the
Separation Date (or such other date as MRV and Luminent may mutually agree),
eligible Luminent Employees may commence participation in the Luminent Deferred
Compensation Plan. Luminent Employees who are currently participating in the MRV
Deferred Compensation Plan shall continue their participation in that Plan
(according to its terms) to the Separation Date (or such other date as MRV and
Luminent may mutually agree).
ARTICLE V
HEALTH AND WELFARE PLANS
Section 5.1 Health Plans as of the Distribution Date.
(a) Luminent Health Plans. As of the Distribution Date (or such other
date(s) as MRV and Luminent may mutually agree), Luminent shall have established
the Luminent Health Plans listed on Schedule 5.1(a) and, correspondingly,
Luminent shall cease to be a Participating Company in the MRV Health Plans.
Luminent shall be solely responsible for the administration of the Luminent
Health Plans, including the payment of all employer-related costs in
establishing and maintaining the Luminent Health Plans, and for the collection
and remittance of employee premiums, subject to Section 8.2.
(b) Pending Treatments. Notwithstanding Subsection 5.1(a) above, all
treatments which have been pre-certified for or are being provided to a Luminent
Transferred Employee as of the Distribution Date shall be provided without
interruption under the appropriate MRV Health Plan (to the extent such continued
treatment is not provided under a Luminent Health Plan) until such treatment is
concluded, discontinued, or, if earlier, through ___________, 2000, pursuant to
applicable Health Plan rules and limitations, but Luminent shall continue to be
responsible for all Liabilities relating to, arising out of, or resulting from
such on-going treatments as of the Distribution Date.
22
(c) Vendor Arrangements. MRV shall use its commercially reasonable best
efforts for and on behalf of Luminent to procure, effective as of the
Distribution Date (or such other date(s) as MRV and Luminent may mutually
agree): (i) third party ASO Contracts which are comparable in the aggregate in
all Material Features to the ASO Contracts entered into by MRV, as set forth in
Schedule 5.1(c)(i) (the "ASO Contracts); (ii) Group Insurance Policies, which
are comparable in the aggregate in all Material Features to the Group Insurance
Policies entered into by MRV, as set forth in Schedule 5.1(c)(ii) (the "Group
Insurance Policies"); and (iii) an HMO Agreement which is comparable in the
aggregate in all Material Features to the HMO Agreement entered into by MRV, as
set forth in Schedule 5.1(c)(iii) (the "HMO Agreement"). In each case, Luminent
shall, as of the Distribution Date (or such other date as MRV and Luminent may
mutually agree), establish, adopt and/or implement such contracts, agreements or
arrangements. Luminent may, at such future date after the Distribution Date,
elect to discontinue such contracts, agreements or arrangements in accordance
with Section 2.3.
(d) Continuance of Elections, Co-Payments and Maximum Benefits.
(i) As of the Distribution Date and for the remainder of the plan
year in which the Distribution Date occurs (or such other period as MRV and
Luminent may mutually agree), Luminent shall make its commercially reasonable
best efforts to cause the Luminent Health Plans to recognize and maintain all
coverage and contribution elections made by Luminent Employees and Luminent
Transferred Employees under the MRV Health Plans and apply such elections under
the Luminent.
Health Plans for the remainder of the period or periods for which such
elections are by their terms applicable. The transfer or other movement of
employment between MRV to Luminent at any time upon or before the Distribution
Date shall neither constitute nor be treated as a "status change" or termination
of employment under the MRV Health Plans or the Luminent Health Plans.
(ii) On and after the Distribution Date, Luminent shall cause the
Luminent Health Plans to recognize and give credit for (A) all amounts applied
to deductibles, out-of-pocket maximums, co-payments and other applicable benefit
coverage limits with respect to which such expenses have been incurred by
Luminent Transferred Employees under the MRV Health Plans for the remainder of
the calendar year in which the Distribution Date occurs, and (B) all benefits
paid to Luminent Transferred Employees under the MRV Health Plans for purposes
of determining when such persons have reached their lifetime maximum benefits
under the Luminent Health Plans.
(e) HCFA. As of the Separation Date (or such other date as MRV and
Luminent may mutually agree), Luminent shall assume all Liabilities relating to,
arising out of, or resulting from claims, if any, under the HCFA data match
reports that relate to Luminent Transferred Employees.
Section 5.2 Health Plans from the Separation Date through the Distribution Date.
Except as otherwise agreed by MRV and Luminent, for the period beginning with
the Separation Date and ending on the Distribution Date (or such other period as
MRV and Luminent may mutually agree), Luminent shall be a Participating Company
in the MRV Health Plans listed on Schedule 5.2(a). MRV shall administer claims
incurred under the MRV Health Plans by Luminent Employees before the
Distribution Date but only to the extent that Luminent has not, before the
Distribution Date, established and assumed administrative responsibility for a
corresponding
23
Health Plan. Any determination made or settlements entered into by MRV with
respect to such claims shall be final and binding. MRV shall retain financial
and administrative ("run-out") Liability and all related obligations and
responsibilities for all claims incurred by Luminent Transferred Employees
before the Distribution Date (or such other date(s) as MRV and Luminent may
mutually agree), including any claims that were administered by MRV as of, on,
or after the Distribution Date (or such other date(s) as MRV and Luminent may
mutually agree). Except as set forth in the preceding sentence, Luminent shall
reimburse MRV for any and all direct and indirect costs and expenses associated
with its participation in the MRV Health Plans, subject to Section 8.2.
Section 5.3 Group Life Plan.
(a) Luminent's Participation in MRV Group Life Plan. Luminent shall,
until the Distribution Date (or such other date as MRV and Luminent may mutually
agree), continue to be a Participating Company in the MRV Group Life Plan.
Luminent shall cease to be a Participating Company in the MRV Group Life Plan
coincident with Luminent's establishment of the Luminent Group Life Plan (or, if
none, Luminent's written notice to MRV of its withdrawal as a Participating
Company in the MRV Group Life Plan). Luminent shall reimburse MRV for any and
all direct and indirect costs and expenses associated with its participation in
the MRV Group Life Plan, subject to Section 8.2.
(b) Luminent's Establishment of Luminent Group Life Plan. MRV shall make
its commercially reasonable best efforts to procure an arrangement on behalf of
Luminent for a Group Life Plan which shall be comparable in the aggregate in all
Material Features to the MRV Group Life Plan as are financially,
administratively and legally practicable. If MRV procures such an arrangement,
Luminent will not unreasonably withhold its consent to adopt such an arrangement
to constitute the Luminent Group Life Plan. Luminent will reimburse MRV for its
direct and indirect costs and expenses associated with its procurement,
preparation, and implementation of the Luminent Group Life Plan, subject to
Section 8.2.
Section 5.4 AD&D Plan.
(a) Luminent's Participation in MRV AD&D Plan. Luminent shall, until the
Distribution Date (or such other date as MRV and Luminent may mutually agree),
continue to be a Participating Company in the MRV AD&D Plan. Luminent shall
cease to be a Participating Company in the MRV AD&D Plan coincident with
Luminent's establishment of the Luminent AD&D Plan (or, if none, Luminent's
written notice to MRV of its withdrawal as a Participating Company in the MRV
AD&D Plan). Luminent shall reimburse MRV for any and all direct and indirect
costs and expenses associated with its participation in the MRV AD&D Plan,
subject to Section 8.2.
(b) Luminent's Establishment of Luminent AD&D Plan. MRV shall make its
commercially reasonable best efforts to procure an arrangement on behalf of
Luminent for an AD&D Plan which shall be comparable in the aggregate in all
Material Features to the MRV AD&D Plan as are financially, administratively and
legally practicable to Luminent. If MRV procures such an arrangement, Luminent
shall not unreasonably withhold its consent to adopt such an arrangement to
constitute the Luminent AD&D Plan. Luminent will reimburse MRV for its direct
and indirect costs and expenses associated with its procurement, preparation and
implementation of the Luminent AD&D Plan, subject to Section 8.2.
24
Section 5.5 Severance Plan. Luminent shall, until the Distribution Date (or such
other date as MRV and Luminent may mutually agree), continue to be a
Participating Company in the MRV Severance Plan. Luminent shall cease to be a
Participating Company in the MRV Severance Plan coincident with Luminent's
establishment of the Luminent Severance Plan (or if none, Luminent's written
notice to MRV of its withdrawal as a Participating Company in the MRV Severance
Plan). If Luminent so elects, MRV will assist Luminent in establishing the
Luminent Severance Plan. Luminent will reimburse MRV for any and all direct and
indirect costs and expenses related to its participation in the MRV Severance
Plan and MRV's preparation and implementation of the Luminent Severance Plan,
subject to Section 8.2.
Section 5.6 Sabbatical Plan.
(a) Luminent's Participation in MRV Sabbatical Plan. Luminent shall,
until the Distribution Date (or such other date as MRV and Luminent may mutually
agree), continue to be a Participating Company in the MRV Sabbatical Plan.
Luminent shall remit to MRV or the trust fund for the MRV Sabbatical Plan, as
specified by MRV, sufficient funds to assume its funding Liability under the MRV
Sabbatical Plan relating to, arising out of, or resulting from Luminent's
participation in the MRV Sabbatical Plan. Luminent will also reimburse MRV for
any and all direct and indirect costs and expenses associated with its
participation in the MRV Sabbatical Plan, subject to Section 8.2. Luminent shall
cease to be a Participating Company in the MRV Sabbatical Plan coincident with
Luminent's establishment of the Luminent Sabbatical Plan.
(b) Allocation and Assumption of Liabilities. MRV shall determine the
amount of Assets under the MRV Sabbatical Plan and related trust as of the
Distribution Date (or such other date that Luminent establishes the Luminent
Sabbatical Plan) attributable to Luminent. As soon as administratively
practicable thereafter, MRV shall pay to Luminent or to the trustee of the
Luminent Sabbatical Plan, as Luminent specifies, an amount equal to Luminent's
Assets under the MRV Sabbatical Plan, if any.
(c) Luminent Sabbatical Plan. Effective as of the Distribution Date (or
such other date as MRV and Luminent may mutually agree), Luminent shall
establish the Luminent Sabbatical Plan which is comparable in the aggregate in
all Material Features to the MRV Sabbatical Plan. If Luminent so elects, MRV
will assist Luminent in preparing and implementing the Luminent Sabbatical Plan
and Luminent will reimburse MRV for its costs and expenses associated with the
preparation and implementation of the Luminent Sabbatical Plan, subject to
Section 8.2.
Section 5.7 Disability Plans.
(a) Short-Term Disability Plan. Effective on or before the Separation
Date (or such other date as MRV and Luminent may mutually agree), Luminent shall
implement or cause to be implemented, payroll procedures for purposes of
sponsoring and administering the Luminent Short-Term Disability Plan outside of
California. Luminent has adopted a state voluntary Disability Plan for Luminent
Employees and Luminent Transferred Employees who are employed in California. MRV
will administer Luminent's Short-Term Disability Plan through the Distribution
Date (or such other date as MRV and Luminent may mutually agree). Luminent shall
reimburse MRV for its costs and expenses associated with such administration,
subject to Section 8.2.
25
Section 5.8 Long-Term Disability Plan. Luminent shall, until the Distribution
Date (or such other date as Luminent and MRV may mutually agree), continue to be
a Participating Company in the MRV Long-Term Disability Plan. MRV shall use its
commercially reasonable best efforts for and on behalf of Luminent to procure,
effective as of the Distribution Date (or such other date as MRV and Luminent
may mutually agree), a Luminent Long-Term Disability Plan. Luminent will
reimburse MRV for any and all direct and indirect costs and expenses associated
with its participation in the MRV Long-Term Disability Plan and MRV's assistance
in procuring, preparing, and implementing the Luminent Long-Term Disability
Plan, subject to Section 8.2.
Section 5.9 Business Travel Accident Insurance. Through the Distribution Date
(or such other date as MRV and Luminent may mutually agree), Luminent shall
remain a Participating Company in the MRV Business Travel Accident Insurance
policy. MRV shall be responsible for administering or causing to be administered
the MRV Business Travel Accident Insurance policy with respect to Luminent
Employees. Luminent shall reimburse MRV for any and all direct and indirect
expenses and costs associated with its participation in the MRV Business Travel
Accident Insurance policy, subject to Section 8.2. MRV shall use its
commercially reasonable best efforts for and on behalf of Luminent to procure a
Business Travel Accident Insurance policy which shall be comparable in the
aggregate in all Material Features to the MRV Business Travel Accident Insurance
policy, effective as of the Distribution Date (or such other date as MRV and
Luminent may mutually agree). If MRV procures such an agreement, Luminent shall
not unreasonably withhold its consent to adopt such an agreement to constitute
the Luminent Business Travel Accident Insurance policy. Effective as of the
Distribution Date, Luminent shall be solely responsible for maintaining its own
Business Travel Accident Insurance policy.
Section 5.10 Long-Term Care Plan. Through the Distribution Date (or such other
date as MRV and Luminent may mutually agree), Luminent shall remain a
Participating Company in the MRV Long-Term Care Plan. MRV shall be responsible
for administering or causing to be administered the MRV Long-Term Care Plan.
Luminent shall reimburse MRV for any and all direct and indirect costs and
expenses associated with its participation in the MRV Long-Term Care Plan,
subject to Section 8.2. The Luminent Employees and Luminent Transferred
Employees participating in the MRV Long-Term Care Plan shall have the rights to
take their existing benefits with them under such MRV Long-Term Care Plan (a
"portable benefit") at the time their rights to participation would otherwise
terminate.
Section 5.11 Section 125 Plan. Through [ ____________ ] (or such other date as
MRV and Luminent may mutually agree), Luminent and designated members of the
Luminent Group shall remain Participating Companies in the MRV Section 125 Plan.
The existing elections for Luminent Employees participating in the MRV Section
125 Plan and for newly-eligible Luminent Employees who elect to participate in
the MRV Section 125 Plan shall remain in effect through [ ____________ ] (or
such other date as MRV and Luminent may mutually agree). Effective on
[ ____________ ] (or such other date immediately following the date that
Luminent's participation in the MRV Section 125 Plan terminates), Luminent shall
establish, or caused to be established, the Luminent Section 125 Plan and
Luminent shall be solely responsible for the Luminent Section 125 Plan. MRV will
administer, or cause to be administered, the MRV Section 125 Plan for Luminent
Employees and the Luminent Section 125 Plan through such date as MRV and
Luminent may mutually agree. Luminent shall reimburse MRV for any and all direct
and indirect expenses and costs attributable to Luminent Employees, subject to
Section 8.2.
26
Section 5.12 COBRA. MRV shall be responsible through the Distribution Date (or
such other date as MRV and Luminent may mutually agree), for compliance with the
health care continuation coverage requirements of COBRA and the MRV Health and
Welfare Plans with respect to Luminent Employees and qualified beneficiaries (as
such term is defined under COBRA). Luminent shall be responsible for providing
MRV with all necessary employee change notices and related information for
covered dependents, spouses, qualified beneficiaries (as such term is defined
under COBRA), and alternate recipients pursuant to QMCSO, in accordance with
applicable MRV COBRA policies and procedures. As soon as administratively
practicable after the Distribution Date (or such other date as MRV and Luminent
may mutually agree), MRV shall provide Luminent (through hard copy, electronic
format, or such other mechanism as is appropriate under the circumstances), with
a list of all qualified beneficiaries (as such term is defined under COBRA) that
relate to the Luminent Group and the relevant information pertaining to their
coverage elections and remaining COBRA time periods. Effective as of the
Distribution Date (or such other date as MRV and Luminent may mutually agree),
Luminent shall be solely responsible for compliance with the health care
continuation coverage requirements of COBRA and the Luminent Health and Welfare
Plans for Luminent Transferred Employees and their qualified beneficiaries (as
such term is defined under COBRA); provided, however, Luminent may elect to
retain MRV's services in such manner and for such period as MRV and Luminent may
mutually agree to assist it with COBRA administration and Luminent will
reimburse MRV for its costs and expenses associated with such administration,
subject to Section 8.2.
Section 5.13 Leave of Absence Plans and FMLA.
(a) Allocation of Responsibilities After Separation Date. Effective as
of the Separation Date (or such other date as MRV and Luminent may mutually
agree): (i) Luminent shall adopt Leave of Absence Plans which shall be
comparable in the aggregate in all Material Features to the MRV Leave of Absence
Plans as in effect on the Separation Date (or such other date as MRV and
Luminent may mutually agree); (ii) Luminent shall honor all terms and conditions
of leaves of absence which have been granted to any Luminent Employee under a
MRV Leave of Absence Plan or FMLA before the Separation Date by MRV, including
such leaves that are to commence after the Separation Date (or such other date
as MRV and Luminent may mutually agree); and (iii) Luminent shall recognize all
periods of service of Luminent Employees and Luminent Transferred Employees with
the MRV Group, as applicable, to the extent such service is recognized by the
MRV Group for the purpose of eligibility for leave entitlement under the MRV
Leave of Absence Plans and FMLA; provided, however, that no duplication of
benefits shall, to the extent permitted by law, be required by the foregoing.
(b) Administration. Through the Distribution Date (or such other such
period as MRV and Luminent may mutually agree), MRV will administer, or cause to
be administered, the Luminent Leave of Absence Plans in such manner as MRV and
Luminent may mutually agree. Luminent will reimburse MRV for its costs and
expenses associated with such administration, subject to Section 8.2.
(c) Disclosure. Before the Distribution Date (or such other date as MRV
and Luminent may mutually agree), MRV shall provide to Luminent copies of all
records pertaining to the MRV Leave of Absence Plans and FMLA with respect to
all Luminent Employees and Luminent Transferred Employees to the extent such
records have not been previously provided.
27
Section 5.14 Workers' Compensation Plan.
(a) Assumption of MRV and Luminent Workers' Compensation Plan
Liabilities by Luminent. Effective as of the Separation Date, Luminent shall
assume and be solely responsible for all Liabilities relating to, arising out
of, or resulting from their claims by Luminent Employees and Luminent
Transferred Employees employment with the Luminent Business ("Luminent Claims")
whether incurred before or after the Separation Date.
(b) Participation in the MRV Workers' Compensation Plan. Luminent shall,
until the Distribution Date (or such earlier date as Luminent and MRV may
mutually agree), continue to be a Participating Company in the MRV Workers'
Compensation Plan. MRV shall continue to administer, or cause to be
administered, the MRV Workers' Compensation Plan in accordance with its terms
and applicable law. Luminent shall fully cooperate with MRV and its insurance
company in the administration and reporting of Luminent Claims under the MRV
Workers' Compensation Plan. Any determination made, or settlement entered into,
by or on behalf of MRV or its insurance company with respect to Luminent claims
under the MRV Workers' Compensation Plan shall be final and binding. Luminent
shall reimburse MRV and its insurance company for any and all direct and
indirect costs related to the Luminent claims or Luminent's participation in the
MRV Workers' Compensation Plan, including, but not limited to loss costs, claims
administration fees, legal expenses, premium audits, and retrospective premium
adjustments, subject to Section 8.2. MRV shall transfer to and reimburse
Luminent any assets related to the Luminent claims or Luminent's participation
in the MRV Workers' Compensation Plan, including, but not limited to, loss
reserves, premium audits, and retrospective premium adjustments.
(c) Outsourcing of Luminent Workers' Compensation Plan Claims. Luminent
shall have the right to transfer the administration of Luminent Claims incurred
under the MRV Workers' Compensation Plan to a third party administrator, vendor,
or insurance company ("Outsource"). Luminent shall promptly notify MRV of its
intent to transfer such claims, including the material terms and conditions of
the transfer before the effective date thereof. MRV, upon the request of
Luminent, shall use its commercially reasonable best efforts to procure such
Outsourcing on behalf of Luminent, assist Luminent in the transition to
Outsourcing, and provide Luminent with any information that is in the possession
of MRV and is reasonably available and necessary to obtain such Outsourcing.
(d) Establishment of the Luminent Workers' Compensation Plan. As of the
Distribution Date, Luminent shall be responsible for complying with the workers'
compensation requirements of the states in which the Luminent Group conducts
business and for obtaining and maintaining insurance programs for its risk of
loss. Such insurance arrangements shall be separate and apart from the MRV
Workers' Compensation Plan. Notwithstanding the foregoing, MRV, upon the request
of Luminent, shall use its commercially reasonable best efforts to procure
workers' compensation insurance policies on behalf of Luminent, assist Luminent
in the transition to its own separate insurance program, and provide Luminent
with any information that is in the possession of MRV and is reasonably
available and necessary to either obtain insurance coverages for Luminent or to
assist Luminent in preventing unintended self-insurance, in whatever form.
Section 5.15 Administrative Services. To the extent not provided otherwise in
this Article, MRV shall provide certain administrative services to Luminent in
conjunction with both the
28
MRV and Luminent Health and Welfare Plans in such manner and for such period as
MRV and Luminent may mutually agree. Luminent shall reimburse MRV for any and
all direct and indirect costs and expenses related thereto, subject to Section
8.2.
ARTICLE VI
EQUITY AND OTHER COMPENSATION
Section 6.1 Bonus Plan. Employees of the Luminent Business (including, for this
purpose, any employees of MRV who are designated as employees of the Luminent
Business for purposes of the Separation) shall cease their participation in the
MRV Bonus Plan in the quarter ending prior to the Distribution Date (or such
other date as MRV and Luminent may mutually agree). Any bonus pool, or portion
thereof, that has been finally determined or accrued for under the MRV Bonus
Plan for the benefit of, or that is allocable to, employees of the Luminent
Business (including for this purpose, any employees of MRV who are designated as
employees of the Luminent Business for purposes of the Separation) shall be paid
to such Employees pursuant to the terms and conditions of the MRV Bonus Plan,
except that such payment shall be made on the Distribution Date (or such other
date as MRV and Luminent may mutually agree). Effective as of the Distribution
Date (or such other date as MRV and Luminent may mutually agree), Luminent shall
establish the Luminent Bonus Plan for Luminent Employees and Luminent
Transferred Employees for Luminent fiscal period(s) beginning on and after the
Distribution Date (or such other date as MRV and Luminent may mutually agree),
to be administered by the Compensation Committee of the Luminent Board of
Directors.
Section 6.2 Executive Bonus Plan. Employees of the Luminent Business (including,
for this purpose, any employees of MRV who are designated as employees of the
Luminent Business for purposes of the Separation) shall cease their
participation in the MRV Executive Bonus Plan in the quarter ending prior to the
Distribution Date (or such other date as MRV and Luminent may mutually agree).
Any bonus pool, or portion thereof, that has been finally determined or accrued
for under the MRV Executive Bonus Plan for the benefit of, or that is allocable
to, employees of the Luminent Business (including for this purpose, any
employees of MRV who are designated as employees of the Luminent Business for
purposes of the Separation) shall be paid to such Employees pursuant to the
terms and conditions of the MRV Bonus Plan, except that such payment shall be
made on the Distribution Date (or such other date as MRV and Luminent may
mutually agree). The MRV Board of Directors may, in its absolute discretion
following the IPO, adjust the performance and other factors applicable to any
employee of the Luminent Business (including, for this purpose, any employees of
MRV who are designated as employees of the Luminent Business for purposes of the
Separation) under the MRV Executive Bonus Plan to reflect any changes in such
employee's position, duties and responsibilities following the IPO in such
equitable fashion as it shall determine. Effective as of the Distribution Date
(or such other date as MRV and Luminent may mutually agree), Luminent shall
establish the Luminent Executive Bonus Plan for Luminent Employees and Luminent
Transferred Employees for Luminent fiscal period(s) beginning on and after the
Distribution Date (or such other date as MRV and Luminent may mutually agree),
to be administered by the Compensation Committee of the Luminent Board of
Directors.
Section 6.3 MRV Options.
29
(a) Option Assumption by Luminent. At the Distribution Date (or such
other date as MRV and Luminent may mutually agree), each outstanding MRV Option
held by Luminent Transferred Employees, whether vested or unvested, shall be, in
connection with the Distribution, assumed by Luminent. Each MRV Option so
assumed by Luminent shall continue to have, and be subject to, the same terms
and conditions set forth in the MRV Stock Plans and as provided in the
respective option agreements governing such MRV Option as of the Distribution
Date (or such other date as MRV and Luminent may mutually agree), except that
(i) such MRV Option shall be exercisable for that number of whole shares of
Luminent common stock equal to the quotient of the number of shares of MRV
common stock that were issuable upon exercise of such MRV Option as of the
Distribution Date divided by the Ratio, rounded down to the nearest whole number
of shares of Luminent common stock, and (ii) the per share exercise price for
the shares of Luminent common stock issuable upon exercise of such assumed MRV
Option shall be equal to the product determined by multiplying the exercise
price per share of MRV common stock at which such MRV Option was exercisable as
of the Distribution Date by the Ratio, rounded up to the nearest whole cent.
(b) Assumption Criteria. It is the intention of MRV and Luminent that
the assumption of MRV Options by Luminent pursuant to Subsection 6.3(a) meet the
following criteria: (i) the aggregate intrinsic value of the assumed MRV Options
immediately after the assumption is not greater than such value immediately
before the assumption; (ii) with respect to each such assumed MRV Option, the
ratio of the exercise price per share to the Luminent Stock Value of the assumed
MRV Options immediately after the assumption is not less than the ratio of the
exercise price per share to the MRV Stock Value immediately before the
assumption; and (iii) the vesting and option term of the assumed MRV Options
shall not be changed.
(c) Certain Non-U.S. Optionees. Except as may otherwise be agreed upon
by MRV and Luminent and/or as set forth in Schedule 6.3, this Section 6.3 shall
govern the treatment of MRV Options held by non-U.S. Luminent Transferred
Employees, if any.
Section 6.4 MRV Restricted Stock.
(a) Forfeiture. Except as otherwise specified herein and subject to the
terms of the applicable MRV Stock Plans, on the Distribution Date, MRV
Restricted Stock (including any Luminent common stock issued with respect to
such MRV Restricted Stock in connection with the Distribution) held by Luminent
Transferred Employees shall be forfeited in accordance with the terms of the
applicable MRV Stock Plans.
(b) Substitution. Each Luminent Employee who holds MRV Restricted Stock
shall receive Luminent Restricted Stock at the Distribution Date (or such other
date as MRV and Luminent may mutually agree), as more fully set forth in this
Subsection 6.4(b). The value of a Luminent Employee's resulting Luminent
Restricted Stock award shall be substantially equivalent to the value of his or
her forfeited MRV Restricted Stock award (such value to be reasonably determined
by Luminent immediately before the Record Date, the Distribution Date (or such
other date as MRV and Luminent may mutually agree)). The resulting Luminent
Restricted Stock shall vest under circumstances substantially identical to the
vesting conditions applicable to the corresponding MRV Restricted Stock.
(c) Certain Non U.S. Restricted Stock Holders. Except as may otherwise
be agreed upon by MRV and Luminent and/or as set forth in Schedule 6.4, this
Section 6.4 shall govern the treatment of MRV Restricted Stock held by non-U.S.
Luminent Transferred Employees, if any.
30
Section 6.5 Stock Purchase Plan. Through the Distribution Date, employees of the
Luminent Business (including for this purpose any employee of MRV who is
designated as an employee of the Luminent Business for purposes of the
Separation) shall continue to be eligible for participation in the MRV Stock
Purchase Plan. Effective on or before the IPO (or such other date as MRV and
Luminent may mutually agree), Luminent shall sponsor a Stock Purchase Plan for
the benefit of Luminent Employees and Luminent Transferred Employees which shall
be comparable in the aggregate in all Material Features to the corresponding MRV
Stock Purchase Plan, except that the Luminent Stock Purchase Plan shall limit
the payroll deductions that may be made by a participant thereunder, when
cumulated with his or her payroll deductions under the MRV Stock Purchase Plan,
to an aggregate of ten percent (10%) of his or her compensation (as such term is
defined in the MRV and Luminent Stock Purchase Plans).
Section 6.6 Administrative Services. To the extent not provided otherwise in
this Article, MRV shall provide certain administrative services to Luminent in
conjunction with both the MRV and Luminent Bonus Plans, Executive Bonus Plan and
Stock Plans in such manner and for such period as MRV and Luminent may mutually
agree. Luminent shall reimburse MRV for any and all direct and indirect costs
and expenses related thereto, subject to Section 8.2.
ARTICLE VII
FRINGE AND OTHER BENEFITS
Section 7.1 Employee Assistance Program. MRV shall use its commercially
reasonable best efforts for and on behalf of Luminent to procure, effective as
of the Distribution Date (or such other date as MRV and Luminent may mutually
agree), a contract with Concern, which is comparable in the aggregate in all
Material Features to MRV's contract with Concern that provides for a Luminent
Employee Assistance Program. Luminent shall not unreasonably withhold its
consent to enter into such contracts and/or arrangements as procured by MRV.
Luminent shall cease to be a Participating Company in the MRV Employee
Assistance Program coincident with Luminent's establishment of the Luminent
Employee Assistance Program. Luminent shall reimburse MRV for any and all direct
and indirect costs and expense associated with its participation in the MRV
Employee Assistance Program and MRV's procurement of a contract or arrangement
on behalf of Luminent, subject to Section 8.2.
Section 7.2 Educational Assistance Program. Effective as of the Distribution
Date (or such other date as Luminent and MRV may mutually agree), Luminent shall
provide a Luminent Educational Assistance Program to Luminent Employees which is
comparable in the aggregate in all Material Features to the MRV Educational
Assistance Program. Luminent shall cease to be a Participating Company in the
MRV Educational Assistance Program coincident with Luminent's establishment of
the Luminent Educational Assistance Program. At such time, any and all
outstanding approved reimbursements under the MRV Educational Assistance Program
for Luminent Employees shall be made by Luminent. Furthermore, Luminent shall
reimburse MRV for any and all direct and indirect costs and expenses associated
with its participation in the MRV Educational Assistance Program and MRV's
preparation of an Educational Assistance Program on behalf of Luminent, subject
to Section 8.2.
Section 7.3 Other Benefits. To the extent that MRV maintains, sponsors or
provides other fringe benefits specified in Schedule 7.8 to its eligible
employees, then MRV shall, to the extent
31
permitted by law, continue to make such benefits available to Luminent Employees
on substantially similar terms and conditions as are offered to the employees of
the MRV Group through the Distribution Date (or such other date upon which
Luminent and MRV mutually agree). Luminent shall reimburse MRV for any and all
direct and indirect costs and expenses associated with, arising out of, or
resulting from the provision of such other fringe benefits to its employees,
subject to Section 8.2. Luminent and MRV agree to make commercially reasonable
best efforts to mutually agree on whether, when, and on what terms any member of
the Luminent Group shall maintain, sponsor, or offer fringe benefits.
Section 7.4 Administrative Services. To the extent not provided otherwise in
this Article, MRV shall provide certain administrative services to Luminent in
conjunction with both the MRV and the Luminent Fringe Benefit Plans in such
manner and for such period as MRV and Luminent may mutually agree. Luminent
shall reimburse MRV for any and all direct and indirect costs and expenses
related thereto, subject to Section 8.2.
ARTICLE VIII
ADMINISTRATIVE PROVISIONS
Section 8.1 Master Transitional Services Agreement. On or prior to the
Separation Date (or such other date as Luminent and MRV may mutually agree), MRV
and Luminent may enter into a Master Transitional Services Agreement covering
the provisions of interim services, including financial, accounting, legal,
benefits-related and other services by MRV to Luminent or, in certain
circumstances, vice versa, if appropriate or necessary.
Section 8.2 Payment of Liabilities, Plan Expenses and Related Matters.
(a) Expenses and Costs Chargeable to a Trust. Effective as of the
Separation Date, Luminent shall pay its share of any contributions made to any
trust maintained in connection with a MRV Plan while Luminent is a Participating
Company in that MRV Plan.
(b) Contributions to Trusts. With respect to MRV Plans to which Luminent
Employees and Luminent Transferred Employees make contributions, MRV shall use
reasonable procedures to determine Luminent Assets and Liabilities associated
with each such Plan, taking into account such contributions, settlements,
refunds and similar payments.
(c) Administrative Expenses Not Chargeable to a Trust. Effective as of
the Separation Date, to the extent not charged pursuant to a Master Transitional
Services Agreement (as contemplated by Section 8.1) or another Ancillary
Agreement, and to the extent not otherwise agreed to in writing by MRV and
Luminent, and to the extent not chargeable to a trust established in connection
with a MRV Plan (as provided in paragraph (a)), Luminent shall be responsible,
through either direct payment or reimbursement to MRV in accordance with Section
5.3 of the Separation Agreement and/or the Master Transitional Services
Agreement, for its allocable share of actual third party and/or vendor costs and
expenses incurred by MRV and additional costs and expenses, subject to the
methodology reasonably agreed upon by MRV and Luminent, in the administration of
(i) the MRV Plans while Luminent participates in such MRV Plans, and (ii) the
Luminent Plans, to the extent MRV procures, prepares, implements and/or
administers such Luminent Plans. To the extent not otherwise determinable
through direct allocation of costs and expenses, Luminent's allocable share of
such costs and expenses will be based on Luminent Revenue as a percentage of
total MRV Revenue.
32
(d) Allocation of Costs and Expenses. Except as otherwise provided in
this Agreement, the Master Transitional Services Agreement, or in any underlying
transitional services schedule between MRV and Luminent (as contemplated in
Section 8.1) relating to the Separation, the IPO, or the Distribution, all costs
and expenses of the parties hereto in connection with the Separation, the IPO
(including underwriting discounts and commissions) and the Distribution and
costs and expenses of the parties hereto in connection with the Separation shall
be allocated between Luminent and MRV. Luminent and MRV shall each be
responsible for their own internal fees, costs and expenses incurred in
connection with the Separation, the IPO and the Distribution.
Section 8.3 Transitional Staffing Services. MRV will provide certain
transitional staffing services and other services as MRV and Luminent may
mutually agree, as set forth on Schedule 8.3; provided, however, that for
purposes of the Workers' Compensation Plan (as set forth in Section 5.13) the
Transitional Staffing Services Agreement for finance shall control, to Luminent
in such manner and for such period as MRV and Luminent may mutually agree.
Luminent shall reimburse MRV for any and all direct and indirect costs and
expenses related thereto, subject to Section 8.2.
Section 8.4 Sharing of Participant Information. In addition to the
responsibilities and obligations of MRV and Luminent specified in Exhibit I to
the Separation Agreement, MRV and Luminent shall share, or cause to be shared,
all participant information that is necessary or appropriate for the efficient
and accurate administration of each of the MRV Plans and the Luminent Plans
during the respective periods applicable to such Plans as Luminent and MRV may
mutually agree). MRV and Luminent and their respective authorized agents shall,
subject to applicable laws of confidentiality and data protection, be given
reasonable and timely access to, and may make copies of, all information
relating to the subjects of this Agreement in the custody of the other party or
its agents, to the extent necessary or appropriate for such administration.
Section 8.5 Reporting and Disclosure Communications to Participants. While
Luminent is a Participating Company in the MRV Plans, Luminent shall take, or
cause to be taken, all actions necessary or appropriate to facilitate the
distribution of all MRV Plan-related communications and materials to employees,
participants and beneficiaries, including (without limitation) summary plan
descriptions and related summaries of material modification(s), summary annual
reports, investment information, prospectuses, notices and enrollment material
for the MRV Plans and Luminent Plans. Luminent shall reimburse MRV for the costs
and expenses relating to the copies of all such documents provided to Luminent,
except to the extent such costs are charged pursuant to Section 8.2 (or are
otherwise addressed in this Agreement) or pursuant to an Ancillary Agreement.
Luminent shall assist MRV in complying with all reporting and disclosure
requirements of ERISA, including the preparation of Form Series 5500 annual
reports for the MRV Plans, where applicable.
Section 8.6 Audits Regarding Vendor Contracts. From the period beginning as of
the Separation Date and ending on such date as MRV and Luminent may mutually
agree, MRV and Luminent and their duly authorized representatives shall have the
right to conduct joint audits with respect to any vendor contracts that relate
to both the MRV Health and Welfare Plans and the Luminent Health and Welfare
Plans. The scope of such audits shall encompass the review of all
correspondence, account records, claim forms, canceled drafts (unless retained
by the bank),
33
provider bills, medical records submitted with claims, billing corrections,
vendor's internal corrections of previous errors and any other documents or
instruments relating to the services performed by the vendor under the
applicable vendor contracts. MRV and Luminent shall agree on the performance
standards, audit methodology, auditing policy and quality measures, reporting
requirements, and the manner in which costs and expenses incurred in connection
with such audits will be shared.
Section 8.7 Employee Identification Numbers. Until the Distribution Date (or
such other period as MRV and Luminent may mutually agree), MRV and Luminent
shall not change any employee identification numbers assigned by MRV. MRV and
Luminent mutually agree to establish a policy pursuant to which employee
identification numbers assigned to either employees of MRV or Luminent shall not
be duplicated between MRV and Luminent.
Section 8.8 Beneficiary Designation. Subject to Section 8.11, all beneficiary
designations made by Luminent Employees and Luminent Transferred Employees for
the MRV Plans shall be transferred to and be in full force and effect under the
corresponding Luminent Plans, in accordance with the terms of each such
applicable Luminent Plan, until such beneficiary designations are replaced or
revoked by the Luminent Employees and Luminent Transferred Employee who made the
beneficiary designation.
Section 8.9 Requests for IRS and DOL Opinions. MRV and Luminent shall make such
applications to regulatory agencies, including the IRS and DOL, as may be
necessary or appropriate. Luminent and MRV shall cooperate fully with one
another on any issue relating to the transactions contemplated by this Agreement
for which MRV and/or Luminent elects to seek a determination letter or private
letter ruling from the IRS or an advisory opinion from the DOL.
Section 8.10 Fiduciary Matters. MRV and Luminent each acknowledge that actions
contemplated to be taken pursuant to this Agreement may be subject to fiduciary
duties or standards of conduct under ERISA or other applicable law, and that no
party shall be deemed to be in violation of this Agreement if such party fails
to comply with any provisions hereof based upon such party's good faith
determination that to do so would violate such a fiduciary duty or standard.
Section 8.11 Consent of Third Parties. If any provision of this Agreement is
dependent on the consent of any third party (such as a vendor) and such consent
is withheld, MRV and Luminent shall use their commercially reasonable best
efforts to implement the applicable provisions of this Agreement. If any
provision of this Agreement cannot be implemented due to the failure of such
third party to consent, MRV and Luminent shall negotiate in good faith to
implement the provision in a mutually satisfactory manner.
Section 8.12 MRV Intranet. Through the Distribution Date (or such other date as
Luminent and MRV may mutually agree), MRV shall make its intranet site available
to Luminent Employees on substantially the same terms as such intranet site is
made available to MRV Employees. Luminent shall reimburse MRV for any and all
costs and expenses related to making its intranet site available to Luminent
Employees, subject to the Master Transitional Services Agreement. MRV and
Luminent shall use their commercially reasonable best efforts to mutually agree
on the appropriate methods by which Luminent shall establish its own intranet
site. Tax Cooperation. In connection with the interpretation and administration
of this Agreement, MRV and Luminent shall take into account the agreements and
policies established pursuant to the
34
Separation Agreement and the parties' intent to qualify the Distribution as a
tax-free reorganization under Code Sections 355 and 368(a)(1)(D)
ARTICLE IX
EMPLOYMENT-RELATED MATTERS
Section 9.1 Terms of Luminent Employment. All basic terms and conditions of
employment for Luminent Employees and Luminent Transferred Employees including,
without limitation, their pay and benefits in the aggregate, shall, to the
extent legally and practicably possible, remain substantially the same through
the Distribution Date as the terms and conditions that were in place when the
Luminent Employee or Luminent Transferred Employee was employed by the MRV
Group, as applicable. Notwithstanding the foregoing, Luminent Employees and
Luminent Transferred Employees shall be required to execute a new agreement
regarding confidential information and proprietary developments in a form
approved by Luminent by the Separation Date. In addition, nothing in the
Separation Agreement, this Agreement, or any Ancillary Agreement should be
construed to change the at-will status of the employment of any of the employees
of the MRV Group or the Luminent Group.
Section 9.2 HR Data Support Systems. MRV shall provide human resources data
support for Luminent Employees and Luminent Transferred Employees through
_______________ (or such other period as MRV and Luminent may mutually agree).
Luminent agrees to fully reimburse MRV for any and all direct and indirect costs
and expenses associated with its use of the MRV human resources data support
systems, subject to Section 8.2. In the event that MRV and Luminent agree to
extend the time period beyond _________________, then the costs and expenses
will be computed in accordance with Section 8.2; provided, however, an
additional ten percent (10%) charge will be incurred by Luminent. MRV and
Luminent each reserves the right to discontinue Luminent's access to any MRV
human resources data support systems with sixty (60) days notice (or such other
period as MRV and Luminent may mutually agree).
Section 9.3 Non-Solicitation of Employees. Subject to Section 5.12 of the
Separation Agreement, MRV and Luminent each agree not to solicit or recruit,
without the other party's express written consent, the other party's employees
for a period of two (2) years following the Distribution Date. To the extent
this prohibition is waived, any recruitment efforts by either MRV or Luminent
during the period of one (1) year after the Distribution Date shall be
coordinated with each party's Senior Vice President of Human Resources or his or
her designate and appropriate management. Notwithstanding the foregoing, this
prohibition on solicitation does not apply to actions taken by a party either:
(a) solely as a result of an employee's affirmative response to a general
recruitment effort carried out through a public solicitation or general
solicitation, or (b) as a result of an employee's initiative.
Section 9.4 Employment of Employees with U.S. Work Visas. Luminent Employees
with U.S. work visas authorizing them to work for Luminent will continue to hold
work authorization for the Luminent Group after the Separation Date. Luminent
will request amendments to the nonimmigrant visa status of Luminent Employees
and Luminent Transferred Employees with U.S. work visas authorizing them to work
for MRV, excluding the Luminent Group, to request authorization to work for
Luminent.
35
Section 9.5 Confidentiality and Proprietary Information. No provision of the
Separation Agreement or any Ancillary Agreement shall be deemed to release any
individual for any violation of the MRV non-competition guideline or any
agreement or policy pertaining to confidential or proprietary information of any
member of the MRV Group, or otherwise relieve any individual of his or her
obligations under such non-competition guideline, agreement, or policy.
Section 9.6 PTO. Effective as of the Separation Date (or such other date as MRV
and Luminent may mutually agree), Luminent shall establish the Luminent PTO Plan
which shall be comparable in the aggregate in all Material Features to the MRV
PTO Plan. Effective as soon as administratively practicable after the Separation
Date (or such other date as MRV and Luminent may mutually agree), MRV shall
transfer to Luminent all data and information relating to the MRV PTO Plan.
Effective as soon as administratively practicable following the Separation Date
(or such other date as MRV and Luminent may mutually agree), Luminent shall
assume all Liabilities attributable to Luminent Employees under the MRV PTO
Plan. In the event that a MRV Employee or Luminent Employee transfers his or her
employment to the other party before the Distribution Date, such transfer of
employment shall not result in a payout or constitute a termination event for
purposes of the PTO Plan, and no duplication of benefits shall occur as a result
of any such transfer of employment between MRV and Luminent. Furthermore, the
Liability attributable to any Luminent Employee or MRV Employee who transfers
employment between MRV and Luminent prior to the Distribution Date shall be
assumed by the employer subsequent to the transfer.
Section 9.7 Personnel Records. Subject to applicable laws on confidentiality and
data protection, MRV shall deliver to Luminent prior to the Distribution Date
(or such other date as MRV and Luminent may mutually agree), personnel records
of Luminent Employees and Luminent Transferred Employees to the extent such
records relate to Luminent Employees' and Luminent Transferred Employees' active
employment by, leave of absence from, or termination of employment with
Luminent. Luminent shall fully reimburse MRV for any and all direct and indirect
costs and expenses associated with such delivery, subject to Section 8.2.
Section 9.8 Medical Records. Subject to applicable laws on confidentiality and
data protection, MRV shall deliver to Luminent prior to the Distribution Date
(or such other date as MRV and Luminent may mutually agree), medical records of
Luminent Employees and Luminent Transferred Employees to the extent such records
(a) relate to Luminent Employees' and Luminent Transferred Employees' active
employment by, leave of absence from, or termination of employment with
Luminent, and (b) are necessary to administer and maintain employee benefit
plans, including Health Plans and Workers' Compensation Plan and for determining
eligibility for paid and unpaid Leaves of Absence for medical reasons. Luminent
shall fully reimburse MRV for any and all direct and indirect costs and expenses
associated with such delivery, subject to Section 8.2.
Section 9.9 Unemployment Insurance Program.
(a) Claims Administration Through Distribution Date. Unless otherwise
directed by Luminent, MRV shall use its commercially reasonable best efforts to
cause Luminent to receive service from MRV's third party unemployment insurance
administrator through the Distribution Date (or such other date as MRV and
Luminent may mutually agree). Luminent shall reimburse MRV for its allocable
share of fees paid and related costs and expenses by MRV to its third party
36
unemployment insurance administrator for services rendered during such period,
pursuant to the Master Transitional Services Agreement. Luminent shall cooperate
with the unemployment insurance administrator by providing any and all necessary
or appropriate information reasonably available to Luminent.
(b) Claim Administration Post-Distribution Date. Before the Distribution
Date, MRV shall use its commercially reasonable best efforts for and on behalf
of Luminent to procure an agreement with its third party unemployment insurance
administrator comparable in the aggregate in all Material Features to the MRV
third party unemployment insurance agreement, including, without limitation,
administration of all unemployment compensation claims of Luminent Transferred
Employees and Luminent Employees, regardless of whether such claims were filed
before, on, or after the Distribution Date. Luminent shall not unreasonably
withhold its consent to adopt such an agreement with such administrator.
Luminent shall reimburse MRV for any and all direct and indirect costs and
expenses associated with such procurement, subject to the Master Transitional
Services Agreement.
Section 9.10 Non-Termination of Employment; No Third-Party Beneficiaries. No
provision of this Agreement, the Separation Agreement, or any Ancillary
Agreement shall be construed to create any right or accelerate entitlement to
any compensation or benefit whatsoever on the part of any Luminent Employee,
Luminent Transferred Employee or other former, present or future employee of MRV
or Luminent under any MRV Plan or Luminent Plan or otherwise. Without limiting
the generality of the foregoing: (a) neither the Distribution or Separation, nor
the termination of the Participating Company status of Luminent or any member of
the Luminent Group shall cause any employee to be deemed to have incurred a
termination of employment; and (b) no transfer of employment between MRV and
Luminent before the Distribution Date shall be deemed a termination of
employment for any purpose hereunder.
Section 9.11 Employment Litigation.
(a) Claims to be Transferred to Luminent and/or Jointly Defended by MRV
and Luminent. On or before the Separation Date, MRV and Luminent will enter into
a written agreement that specifies the legal responsibility and accompanying
Liability for identified claims of Luminent.
(b) Unscheduled Claims. Luminent shall have the sole responsibility for
all employment-related claims regarding Luminent Employees and Luminent
Transferred Employees that exist, or come into existence, on or after the
Separation Date relating to, arising out of, or resulting from their employment
with the Luminent Business or the Luminent Group.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Effect if Separation, IPO and/or Distribution Does Not Occur.
Subject to Section 10.10, if the Separation, IPO and/or Distribution does not
occur, then all actions and events that are, under this Agreement, to be taken
or occur effective as of the Separation Date, IPO, and/or Distribution Date, or
otherwise in connection with the Separation, IPO and/or Distribution, shall not
be taken or occur except to the extent specifically agreed by Luminent and MRV.
37
Section 10.2 Relationship of Parties. Nothing in this Agreement shall be deemed
or construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, the
understanding and agreement being that no provision contained herein, and no act
of the parties, shall be deemed to create any relationship between the parties
other than the relationship set forth herein.
Section 10.3 Affiliates. Each of MRV and Luminent shall cause to be performed
and hereby guarantee the performance of any and all actions of the MRV Group or
the Luminent Group, respectively.
Section 10.4 Incorporation of Separation Agreement Provisions. The following
provisions of the Separation Agreement are hereby incorporated herein by
reference, and unless otherwise expressly specified herein, such provisions
shall apply as if fully set forth herein (references in this Section to an
"Article" or "Section" shall mean Articles or Sections of the Separation
Agreement, and, except as expressly set forth below, references within the
material incorporated herein by reference shall be references to the Separation
Agreement): Section 5.4 (relating to Agreement for Exchange of Information);
Section 5.9 (relating to Dispute Resolution); Section 5.11 (relating to No
Representation or Warranty); and Article V (relating to Covenants and Other
Matters).
Section 10.5 Governing Law. To the extent not preempted by applicable federal
law, including, without limitation, ERISA, the Code and applicable securities
laws, this Agreement shall be governed by, construed and interpreted in
accordance with the laws of the State of California, irrespective of the choice
of law principles of the State of California, as to all matters, including
matters of validity, construction, effect, performance and remedies.
Section 10.6 Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives and
successors, and nothing in this Agreement, express or implied, is intended to
confer upon any other Person any rights or remedies of any nature whatsoever
under or by reason of this Agreement. This Agreement may be enforced separately
by each member of the MRV Group and each member of the Luminent Group. Neither
party may assign this Agreement or any rights or obligations hereunder, without
the prior written consent of the other party, and any such assignment shall be
void; provided, however, either party may assign this Agreement to a successor
entity in conjunction with such party's reincorporation.
Section 10.7 Severability. If any term or other provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible and in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the fullest possible extent.
Section 10.8 Interpretation. The headings contained in this Agreement or any
Schedule hereto and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Any capitalized term used in any Schedule but not otherwise
defined therein shall have the meaning assigned to such term in this
38
Agreement. When a reference is made in this Agreement to an Article, Section or
Schedule, such reference shall be to an Article of, Section of, or Schedule to
this Agreement unless otherwise indicated.
Section 10.9 Amendment. The Board of Directors of Luminent and MRV may mutually
agree to amend the provisions of this Agreement at any time or times, for any
reason, either prospectively or retroactively, to such extent and in such manner
as the Boards mutually deem advisable. Each Board may delegate its amendment
power, in whole or in part, to one or more Persons or committees as it deems
advisable. The Senior Vice President, Human Resources of MRV and the functional
equivalent of Luminent have full power and authority to mutually adopt an
amendment to this Agreement (subject to each of their authority to amend Plans).
No change or amendment will be made to this Agreement, except by an instrument
in writing signed by authorized individuals.
Section 10.10 Termination. This Agreement may be terminated and the Distribution
abandoned at any time prior to the IPO Closing Date by and in the sole
discretion of MRV without the approval of Luminent. This Agreement may be
terminated at any time after the IPO Closing Date and before the Distribution
Date by mutual consent of MRV and Luminent. In the event of termination pursuant
to this Section, no party shall have any liability of any kind to the other
party.
Section 10.11 Conflict. In the event of any conflict between the provisions of
this Agreement and the Separation Agreement, any Ancillary Agreement, or Plan,
the provisions of this Agreement shall control.
Section 10.12 Counterparts. This Agreement, including the Schedules hereto and
the other documents referred to herein, may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
39
IN WITNESS WHEREOF, each of the parties have caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized on the day and
year first above written.
MRV COMMUNICATIONS, INC.,
a Delaware corporation
By:
-----------------------------------------
Xxxx Xxxxx
Chief Executive Officer
LUMINENT, INC.,
a Delaware corporation
By:
------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Executive Officer
40
SCHEDULE 2.7
FOREIGN PLANS
41
SCHEDULE 5.1(a)
LUMINENT HEALTH AND WELFARE PLANS
Luminent Health Plans:
42
SCHEDULE 5.1(c)(i)
THIRD PARTY ASO
43
SCHEDULE 5.1(c)(ii)
GROUP INSURANCE POLICIES
44
SCHEDULE 5.1(c)(iii)
HMO AGREEMENT
45
SCHEDULE 5.2(a)
MRV HEALTH AND WELFARE PLANS
MRV Health Plans:
46
SCHEDULE 6.3
OPTIONS HELD BY CERTAIN NON-U.S. LUMINENT
TRANSFERRED EMPLOYEES
47
SCHEDULE 6.4
MRV RESTRICTED STOCK HELD BY
NON-U.S. LUMINENT TRANSFERRED EMPLOYEES
48
SCHEDULE 7.8
OTHER FRINGE BENEFITS
49
SCHEDULE 8.3
TRANSITIONAL STAFFING SERVICES
