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Exhibit 10.19
JDS UNIPHASE CORPORATION
2008 CHANGE OF CONTROL BENEFITS PLAN
1. Introduction .
This JDS Uniphase Corporation (the "Company") Change of Control
Benefits Plan (the "Plan") was established effective as of
September 1, 2008.
(a) Purpose . The purpose of the Plan is to describe
eligibility for certain benefits for Eligible Executives (as
defined below) whose employment is terminated as a result of, or
following, a Change of Control (as defined below).
(b) Effect . This Plan supersedes and replaces any prior
policies or practices of the Company or any of its subsidiaries or
affiliated companies that relate to severance payments or vesting
acceleration with respect to stock options, restricted stock units,
performance units, or any other securities or similar incentives of
the Company upon a change of control (as defined in any such
agreements or arrangements) of Company with respect to Eligible
Executives. Any such policies or procedures, to the extent they
relate to severance payments or vesting acceleration with respect
to options of Company upon a change of control, are hereby
rescinded and shall no longer have any force or effect to the
extent such policies or procedures apply to Eligible Executives.
Notwithstanding the foregoing, this Plan is subordinated to any
individual written (i) severance benefit agreement,
(ii) change of control severance agreement, or
(iii) employment agreement that provides for severance
benefits in existence as of the date hereof between any Eligible
Executive and the Company.
2. Definition of Terms . The following capitalized terms
used in this Plan shall have the following meanings:
(a) Cause . "Cause" shall mean (i) gross negligence
or willful misconduct in the performance of an Eligible
Executive’s duties to Company; (ii) a material and
willful violation of any federal or state law by an Eligible
Executive that if made public would injure the business or
reputation of Company; (iii) refusal or willful failure by an
Eligible Executive to comply with any specific lawful direction or
order of Company or the material policies and procedures of Company
including but not limited to the JDS Uniphase Corporation Code of
Business Conduct and the Inside Information and Securities
Transactions policy as well as any obligations concerning
proprietary rights and confidential information of the Company;
(iv) conviction (including a plea of nolo contendere )
of an Eligible Executive of a felony, or of a misdemeanor that
would have a material adverse effect on the Company’s
goodwill if such Eligible Executive were to be retained as an
employee of the Company; or (v) substantial and continuing
willful refusal by an Eligible Executive to perform duties
ordinarily performed by an employee in the same position and having
similar duties as such Eligible Executive; in each case as
reasonably determined by the Board of Directors of Company or the
successor to the Company (the "Board of Directors").
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(b) Change of Control . "Change of
Control" shall mean the occurrence of one or more of the following
with respect to the Company:
(i) the acquisition by any person (or related group of persons),
whether by tender or exchange offer made directly to the
Company’s stockholders, open market purchases or any other
transaction or series of transactions, of stock of the Company
that, together with stock of the Company held by such person or
group, constitutes more than fifty percent (50%) of the total
fair market value or total voting power of the then outstanding
stock of the Company entitled to vote generally in the election of
the members of the Company’s Board of Directors;
(ii) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction in which both
(A) securities representing more than fifty percent
(50%) of the total combined voting power of the surviving
entity are beneficially owned (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 19340), directly
or indirectly, immediately after such merger or consolidation by
persons who beneficially owned common stock immediately prior to
such merger or consolidation and (B) the members of the Board
of Directors immediately prior to the transaction (the "Existing
Board") constitute a majority of the Board of Directors immediately
after such merger or consolidation;
(iii) any reverse merger in which the Company is the surviving
entity but in which either (A) persons who beneficially owned,
directly or indirectly, Common Stock immediately prior to such
reverse merger do not retain immediately after such reverse merger
direct or indirect beneficial ownership of securities representing
more than fifty percent (50%) of the total combined voting
power of the Company’s outstanding securities or (B) the
members of the Existing Board do not constitute a majority of the
Board of Directors immediately after such reverse merger; or
(iv) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (other than a sale,
transfer or other disposition to one or more subsidiaries of the
Company).
Notwithstanding the foregoing, to the extent that any amount
constituting nonqualified deferred compensation within the meaning
of Section 409A of the Internal Revenue Code (including any
applicable final, proposed or temporary regulations and other
administrative guidance promulgated thereunder) would become
payable under this Plan by reason of a Change of Control, such
amount shall become payable only if the event constituting a Change
of Control would also constitute a change in ownership or effective
control of the Company or a change in the ownership of a
substantial portion of the assets of the Company within the meaning
of Section 409A.
(c) Disability . "Disability" shall mean a mental or
physical disability, illness or injury, evidenced by medical
reports from a duly qualified medical practitioner, which renders
an Eligible Executive unable to perform any one or more of the
essential duties of his or her position after the provision of
reasonable accommodation, if applicable, for a period of greater
than ninety (90) days within a one year period. "Disabled" has
a corresponding meaning.
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(d) "Eligible Executives" shall mean individuals
employed by the Company and its subsidiaries in the United States
and on a United States payroll at the level of Senior Vice
President (E200) or above, who either (i) hold one or more of
the following positions or their functional equivalents: Chief
Financial Officer, Chief Administrative Officer, Chief Legal
Officer, Chief Information Officer, the senior executive
responsible for Human Resources, and each senior executive
responsible for one or more Company reporting segment(s) (as
determined with reference to the Company’s financial
statements, and including such senior executives responsible for
business units reported under "All Other", if any), or
(ii) are designated in writing by the Chief Executive Officer
as being an Eligible Executive, subject to subsequent review and
ratification by the Compensation Committee of the Board of
Directors at its discretion.
(e) Good Reason . "Good Reason" shall mean an Eligible
Executive’s resignation from Company within thirty
(30) days following the occurrence of any of the following
events with respect to such Eligible Executive:
(i) without Eligible Executive’s express written consent,
the significant reduction of Eligible Executive’s duties,
authority, responsibilities, job title or reporting relationships
relative to Eligible Executive’s duties, authority,
responsibilities, job title, or reporting relationships as in
effect immediately prior to such reduction, or the assignment to
Eligible Executive of such reduced duties, authority,
responsibilities, job title, or reporting relationships, which
reduction or assigned reduction remains in effect five
(5) business days after written notice by the Eligible
Executive to the Chief Execu
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