Exhibit 10.23
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CHANGE IN CONTROL AGREEMENT
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This Change in Control Agreement (the "Agreement") is made and entered
into as of March 5, 1999 by and between ORTEL CORPORATION, a Delaware
corporation ("Ortel"), and ROGER HAY, an individual ("Executive").
RECITALS
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A. Executive is employed by Ortel as its Chief Financial Officer,
and in such other executive capacity or capacities as the board of directors of
Ortel may from time to time prescribe.
AGREEMENT
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NOW THEREFORE, in consideration of the above Recitals and the
covenants contained herein, Ortel and Executive agree as follows:
Section 1. Definition
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For purposes of this Agreement, a "Change in Control" shall mean the
occurrence of one or more of the following events: (i) a single person or
entity or group of affiliated persons or entities (including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "1934 Act")) is or becomes, directly or indirectly, the "beneficial owner"
(as defined in Rule 13d-3 promulgated under the 1934 Act) of securities of Ortel
representing 40% or more of the total number of votes that may cast for the
election of directors of Ortel, or (ii) a merger or other business combination
of Ortel with another person or entity is consummated, or all or substantially
all of the assets of Ortel are sold to another person or entity, as a result of
which merger, combination or sale the shareholders of Ortel immediately prior to
the consummation of such transaction own, immediately after consummation of such
transaction, equity securities possessing less than 70% of the voting power of
the surviving or acquiring person or entity (or any person or entity in control
of the surviving or acquiring person or entity, the equity securities of which
are issued or transferred in such transaction), or (iii) as the result of or in
connection with any tender or exchange offer for the purchase of securities of
Ortel (other than an offer by Ortel for its securities), a merger,
consolidation, sale of assets, contested election of directors of Ortel or any
combination thereof, the persons who are directors of Ortel before such tender,
exchange offer, merger, consolidation, sale, contested election or combination
thereof cease to constitute a majority of the board of directors of Ortel or any
successor to Ortel.
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Section 2. Termination Payments
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(a) In the event that Executive's employment with Ortel is terminated
by Ortel within six months following a "Change in Control":
(i) Ortel shall continue to pay Executive, on a monthly basis,
his basic salary as in effect immediately prior to the date of termination for
the twenty-four month period commencing on the effective date of such
termination.
(ii) Ortel shall continue to provide Executive all other
benefits as in effect immediately prior to the date of termination, including
but not limited to group health and life insurance benefits and an automobile
allowance, for the twenty-four month period commencing on the effective date of
such termination. Notwithstanding the foregoing, Ortel's obligations to provide
these benefits to Executive shall cease upon and to the extent Executive
acquires substantially similar benefits from an employer other than Ortel.
(iii) Notwithstanding any provisions of Ortel's 1994 Equity
Participation Plan or other similar plans (collectively, "Option Plans"), all
outstanding unvested stock options, if any, granted to Executive under any of
the Option Plans (or options substituted therefor covering for stock of a
successor corporation) shall be and become fully vested and exercisable as to
all shares of stock covered thereby effective as of the date of such
termination.
(b) Executive may elect at any time prior to January 30 of the year
following the year in which Executive's employment is terminated within six
months of a Change in Control, to be paid a lump sum severance allowance, in
lieu of the termination payments described in Section 2(a) above, in an amount
equal to 85% of the aggregate amount of compensation remaining payment to
Executive thereunder.Ortel shall pay such lump sum severance allowance to
Executive within thirty (30) days following such election by Executive.
(c) For the purposes of Section 2(a), termination of Executive's
employment by Ortel shall include termination of Executive's employment by
Executive for Good Reason where "Good Reason" means the occurrence of any of the
following circumstances:
(i) a substantial reduction in the responsibilities of
Executive but not (x) a reduction based solely upon a change in reporting
structure within Ortel, (y) reduction in Executive's title, (z) a transfer to
another position which does not adversely affect Executive's responsibilities,
or (w) a change in the Executive's status, position or duties within Ortel which
change results solely by virtue of Ortel ceasing to be a public company or
becoming a subsidiary or division of a larger corporation.
(ii) the relocation by Ortel of Executive's offices to a
location outside of Los Angeles County or Orange County, California.
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(iii) a reduction by Ortel in Executive's annual base salary as
in effect on the date hereof or as the same being increased from time to time.
Section 3. No Obligation to Mitigate Damages
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In the event of a termination of Executive's employment within six
months of a Change in Control, Executive shall have no obligation to mitigate
damages by seeking other employment and will be entitled to continue to receive
the payments and other benefits provided for in Section 2(a) and 2(b) of this
Agreement.
Section 4. Assignment; Agreement to Survive Dissolution or Merger
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Subject to Executive's right to terminate his employment, this
Agreement shall not be terminated by the voluntary or involuntary dissolution of
Ortel or by any merger where Ortel is not the surviving or resulting
corporation, or upon any transfer of all or substantially all of the business or
assets of Ortel..In the event of any such merger or transfer, the provisions of
this Agreement shall be binding on and shall inure to the benefit of the
surviving entity or the entity to which such business or assets shall be
transferred. This Agreement may not be assigned by Executive.
Section 5. Arbitration
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Except as provided in Section 6 hereof, any controversy or claim
arising out of or relating to this Agreement, or breach thereof, shall be
settled by arbitration in accordance with the Rules of the American Arbitration
Association, and judgment upon any proper award rendered by the arbitrators may
be entered in any court having jurisdiction thereof.There shall be three
arbitrators, one to be chosen directly by each party at will, and the third
arbitrator to be selected by the two arbitrators so chosen. To the extent
permitted by the Rules of the American Arbitration Association and not limited
by Section 6 hereof, the selected arbitrators may grant equitable relief. If
Ortel breaches its obligation under Section 2, it shall pay for all the costs of
arbitration. Otherwise, each party shall pay the fees of the arbitrator
selected by him and of his own attorneys, and the expenses of his witnesses and
all other expenses connected with the presentation of his case, while the costs
of the arbitration including the cost of the record or transcripts thereof, if
any, administrative fees, and all other fees and costs shall be borne equally by
the parties.Any arbitration shall be conducted in the County of either Orange or
Los Angeles, State of California.
Section 6. Choice of Law
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The formation, construction and performance of this Agreement shall be
in accordance with the laws of the State of California.
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Section 7. Notices
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Any notice to Ortel required or permitted hereunder shall be given in
writing, either by personal service or by registered or certified mail, postage
prepaid, duly addressed to the President of Ortel at Ortel's then principal
place of business. Any such notice to Executive shall be given in a like
manner, and if mailed, shall be addressed to Executive at his residence. For
the purpose of determining compliance with any time limit herein, a notice sent
by mail shall be deemed given on the postmark date. Any other notice shall be
deemed given upon receipt of the notice.
Section 8. Sole and Entire Agreement; Separability
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This Agreement constitutes the sole and entire existing agreement
between the parties and completely and correctly expresses all of the rights and
obligations of the parties. All prior agreements are completely superseded and
revoked insofar as any such prior agreement might have given rise to any
enforceable right. In the event any Section or portion thereof is declared
illegal, the remainder of this Agreement shall remain in full force and effect.
Section 9. Waivers
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The waiver in any particular instance or series of instances of any
term or condition of this Agreement or any breach hereof by either party shall
not constitute a waiver of such term or condition or of any breach thereof in
any other instance.
Section 10. Agreement
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This Agreement is subject to amendment only by subsequent written
agreement between, and executed by, the parties hereto. Commencement or
continuation of any custom or practice shall not constitute an amendment hereof
or give additional rights to Executive or create additional obligations of Ortel
with respect to matters covered by this Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement at
Alhambra, California.
ORTEL CORPORATION
/s/ Roger Hay /s/ Lyle B. Boarts
By:
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Roger Hay Lyle B. Boarts
Vice President - Administration
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