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EXHIBIT 10.41
Luminent, Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
This employment agreement is effective as of April 23, 2001, between
Luminent, Inc. ("LUMINENT, INC." or "the Company") and Xxxxx Xxx Xxxx
("Executive").
A. Recitals
1. LUMINENT, INC. desires to employ the Executive, and the Executive
desires to accept such employment, on the terms and conditions set forth in this
agreement.
2. The representations, warranties, covenants and agreements of the Executive
are in consideration of the compensation paid to Executive and shall survive the
termination of this agreement.
3. LUMINENT, INC. is materially relying upon each of Executive's covenants,
agreements, representations and warranties in employing Executive with the
company.
THEREFORE, in consideration of the above recitals and of the mutual promises and
conditions in this agreement, it is agreed as follows:
B. At-Will Nature of Employment
1. It is understood and agreed between LUMINENT, INC. and Executive that the
employment relationship is "at-will": in other words, employment may be
terminated at any time, with or without cause, and with or without notice.
Executive understands and acknowledges that his or her employment with LUMINENT,
INC. is for no specific term. LUMINENT, INC. has and will continue to have the
absolute and unconditional right to terminate the employment relationship for
any reason, with or without cause or prior notice. Nothing in this Agreement
shall obligate LUMINENT, INC. to continue to retain Executive as an Executive.
C. Duties
1. Executive shall, under the direction of the Chief Executive Officer of the
Company, perform the duties of as President of LUMINENT, INC.'s U.S.A. Division,
and such other duties as the Chief Executive Officer may from time to time
assign either orally or in writing, and subject to the direction and policies of
LUMINENT, INC. and its board of directors as they may be, from time to time,
stated either orally or in writing.
2. While employed with LUMINENT, INC., Executive agrees that he or she will not
undertake planning for or organization of any business activity competitive with
LUMINENT, INC.'s business or combine or join with other Executives or
representatives of LUMINENT, INC.'s business for the purpose of organizing any
such competitive business activity.
3. Executive shall promptly disclose to LUMINENT, INC.'s appropriate corporate
officers or directors all business opportunities that (i) are present to
Executive in his or her capacity as an Executive of the company, and (ii) of a
similar nature to the type of business in which LUMINENT, INC. currently engages
in or has expressed an interest in engaging in the future. Executive shall not
usurp or take advantage of any such business opportunity without first offering
such opportunity to LUMINENT, INC.
4. Executive shall not take any of the following actions on behalf of LUMINENT,
INC. without the express written approval of the Chief Executive Officer:
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a) Borrowing or obtaining credit in any amount or executing any
guaranty;
b) Expending funds for capital equipment in excess of budgeted
expenditures for any calendar month;
c) Selling or transferring capital assets exceeding $10,000 in market
value in any single transaction or exceeding $100,000 in market value in any one
fiscal year;
d) Executing any contract or making any commitment for the purchase or
sale of LUMINENT, INC.'s products or facilities in an amount exceeding $ 10,000;
e) Executing any lease of real or personal property providing for any in
excess of $100,000;
6. The Executive shall devote all of his business time, attention, and energy to
the Company and shall not, during the term of his/her employment, be actively
engaged in any managerial or employment capacity in any other business activity
for gain, profit, or other pecuniary advantage, unless LUMINENT, INC. consents
to Executive's involvement in such business activity in writing. This
restriction shall not be construed as preventing the Executive from making
investments that do not unreasonably interfere with the performance of his/her
duties with the LUMINENT, INC.
7. Executive represents to LUMINENT, INC. that he/she has no other outstanding
commitments inconsistent with any of the terms of this agreement or the services
to be rendered under it.
8. Executive understands that his or her presence at LUMINENT, INC.'s Corporate
Headquarters is an essential function of his/her position and represents herein
that he/she would not be able to perform the essential functions of his/her
position from anywhere else other than LUMINENT, INC.'s worksite.
D. Compensation
1. Executive's monthly salary shall be $16,666, payable in accordance with
LUMINENT, INC.'s regular payroll procedures and subject to appropriate payroll
deductions and withholdings.
2. LUMINENT, INC. agrees to recommend that the Board of Directors/Compensation
Committee grant to Executive an option to purchase 300,000 shares of LUMINENT,
INC.'s common stock (the "Options") which shall be governed by the Amended and
Restated 2000 Stock Option Plan and Executive's Stock Option Agreement.
Executive's Options will have an exercise price equal to the closing price on
the NASDAQ on the date of the grant. Executive's options shall vest at the rate
of 25% per year, commencing on the anniversary of the Executive's start date and
annually thereafter. The terms of the Options shall be set forth in a separate
stock option agreement (the "Option Agreement") a sample of which is enclosed
herein, which Executive will be required to sign. All of Executive's rights and
remedies with regard to the Options are set forth in the Option Agreement and
the related Plan, a sample of which is provided herewith. Executive's ability to
exercise his or her Options shall be limited by the terms of the Option
Agreement and Plan as more specifically set forth therein.
4. At the Company's sole and absolute discretion, Executive shall receive a
quarterly bonus of up to 50 % (annualized) based upon the Company's performance
and Executive's achievement of performance criteria determined by LUMINENT, INC.
5. Executive shall relocate himself and his immediate family to within an
approximate 45-minute commuting distance of the Company's corporate headquarters
no later than three-months
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from the Executive's date of hire. The Company will pay up to $50,000,
collectively, for 1) qualified moving expenses as defined by the I.R.S. Code, 2)
90-days of temporary living arrangements, and 3) reasonable and customary
expenses related to the purchase of a house, or the acquisition and/or
settlement of a lease. Said reimbursements shall be made by direct reimbursement
upon timely submission of receipts for expenses, and appropriate taxes and
withholdings shall be taken from any nonqualified expenses as defined by the
I.R.S. Code. At the Executive's option, the Company will arrange for relocation
directly through the use of a corporate relocation service; however, any
non-qualified expenses arranged through said service shall be considered wages
as required by law. In the event that Executive terminates his/her employment
voluntarily prior to the one-year anniversary of the Executive's start date,
Executive shall be required to reimburse the Company a pro-rated portion of the
signing bonus equal to $50,000 multiplied by the following percentage: the
numerator of which is equal to the number of full calendar months remaining
until the first anniversary of the Executive's start date, and the denominator
of which is 12.
6. Executive understands that he or she shall be exempt from overtime payments
as defined by state and federal wage and hour laws. Executive further
understands that during his/her employment, Executive shall devote such time,
interest, and effort to the performance of this agreement as may be fairly and
reasonably necessary.
E. Other Executive Benefits
1. Executive shall be entitled to all Executive benefits extended, from time to
time, to all regular, full-time Executives of LUMINENT, INC.; however, the
company reserves the right to modify, suspend or discontinue any and all benefit
plans, policies, and practices at any time without notice to or recourse by
Executive. Said benefits currently include medical, dental, vision, and life
insurance coverage, and participation in the company's 401K plan.
2. In the event that Executive's employment with LUMINENT, INC. is terminated
other than for Cause, he shall receive from the date of termination the
outstanding remainder of his/her annual salary through the end of the calendar
year. For purposes of this paragraph, Cause is defined as a) a material act of
dishonesty, b) disclosure by Executive of confidential information, c) gross
carelessness or misconduct, d) unjustifiable neglect of his duties under this
Agreement, and e) any act that has a direct, substantial, and adverse effect on
LUMINENT, INC.'s reputation.
F. Prohibition Against Assignment and Modification
1. Executive acknowledges that the services to be rendered by him or her are
unique and personal. Neither this Agreement nor any right or obligation of
Executive hereunder may be assigned by Executive without the prior written
consent of the Chief Executive Officer or President of LUMINENT, INC. Subject
thereto, this Agreement and the covenants and conditions herein contained shall
inure to the benefit of and shall be binding upon the parties hereto and their
respective successors and permitted assigns.
2. This Agreement may not be modified except by a writing duly signed by the
Chief Executive Officer of LUMINENT, INC.
G. Execution of Other Documents and Agreements
1. Executive represents and warrants herein that he or she shall execute
LUMINENT, INC.'s Assignment of Rights and Confidentiality and Non-Disclosure
Agreement, and further understands that employment with the company is
contingent upon Executive's execution of said agreement.
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H. Background Check
1. Executive acknowledges that his/her employment with the Company is contingent
upon successful completion of a background check.
I. Policies and Procedures
1. Executive agrees to comply with the Company's policies and procedures, both
oral and written. Said agreement to comply is a condition precedent to
Executive's employment with the Company. Executive shall execute all forms
acknowledging receipt of and adherence to said policies and procedures.
J. Integration
1. Executive acknowledges that Agreement is the complete and exclusive statement
of the terms of his/her employment with the Company. This agreement supersedes
and other prior or contemporaneous agreements, statements, or promises made to
Executive by anyone, whether or written.
I HAVE READ ALL OF THIS AGREEMENT AND UNDERSTAND IT COMPLETELY. BY MY SIGNATURE
BELOW, I REPRESENT THAT THIS AGREEMENT IS THE ONLY STATEMENT MADE BY OR ON
BEHALF OF THE COMPANY UPON WHICH I HAVE RELIED IN SIGNING THIS AGREEMENT.
Date: _____________ ______________________________________
[Name of Executive]
______________________________________
[Signature]
Typed Name: _________________________
Address: ________________________
________________________
Date: ____________ LUMINENT, INC.
______________________________________
[Signature]
______________________________________
President and Chief Executive Officer
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