Exhibit 10.121
EXECUTIVE SEVERANCE
AGREEMENT
This Executive Severance Agreement
(the “Agreement”), dated as of February 3, 2009
(the “Separation Agreement”), is made and entered into
by and between Steven L. Muellner (“Executive”) and
Meade Instruments Corp., a Delaware corporation (the
“Company”).
RECITALS
A.
Executive served as President and
Chief Executive Officer of the Company.
B.
The terms and conditions of
Executive’s employment with the Company are governed by an
Employment Agreement, dated as of July 13, 2007 (the
“Employment Agreement”), by and between the Company and
Executive which formalizes the severance commitments owed to
Executive in the event of a termination of such Employment
Agreement.
C.
The termination of the Employment
Agreement will be effective as of the Separation Date. Accordingly,
Executive and the Company desire to enter into this Agreement to
set forth in detail, among other things, the payments and benefits
Executive is entitled to receive in connection with such
termination from the Company.
NOW, THEREFORE, in consideration of
the covenants undertaken in the Agreement, the Company and
Executive agree as follows:
AGREEMENT
1.
Termination of Employment
Agreement . On the
Separation Date, the Employment Agreement shall terminate;
provided, however, that notwithstanding anything to the contrary in
this Agreement, Sections 7 (Confidential Information),
8 (Inventions and Patents), 9 (Non-Competition),
10 (Non-Solicitation of Customers), 11 (Noninterference
with Employees), 12 (Assistance in Patent Applications) and
13 (Indemnity) of the Employment Agreement, which are
incorporated herein by reference, shall continue to apply in
accordance with their terms.
2.
Severance Payments and
Benefits . In
connection with the termination of the Employment Agreement and for
his obligations to the Company under this Agreement, including,
without limitation, the Non-Competition obligations set forth in
the Employment Agreement, Executive shall receive the
following:
2.1.
Severance Payment
. A lump sum cash payment
equal to Four Hundred Thousand Dollars ($400,000) (the
“Severance Payment”). The Severance Payment shall be
paid by the Company to the Executive on the Payment Date (as
defined below).
2.2.
Company Sponsored
Benefits .
Participation by Executive in all Company sponsored benefits and
plans shall terminate on the Separation Date. The Company will
provide Executive with a notice under COBRA (as defined below),
which will include the insurance premium rate for coverage for
Executive under the Consolidated Omnibus Budget Reconciliation Act
of 1984, as amended (“COBRA”). Executive will receive
sufficient funds to cover the Company sponsored portion of
Executive’s group insurance coverage for a period of twelve
(12) months; provided, however, that Executive must timely apply
for and elect such COBRA benefits. It will be Executive’s
responsibility and obligation to pay the applicable COBRA premium
for Executive’s coverage. The aggregate value of all
payments to be made to the Executive under this Section 2.2
shall be paid to Executive in one lump sum on the Payment
Date.
2.3.
401K Account
. Nothing in this Agreement
shall affect Executive’s rights to his Company
401(k) account.
3.
Company Property
. Executive agrees to return
all Company property to the Company immediately after the
Separation Date; including, without limitation, product samples or
other Company equipment of a material nature, confidential company
documentation, or any company records, unless the Company property
is used in connection with services provided to or on behalf of the
Company by Executive; provided, however, Executive can retain his
office computer and related peripherals without any cost to
Executive. Notwithstanding the above, the parties agree that the
Company cell phone issued to Executive shall remain with and shall
become the property of Executive, and Executive agrees to be
responsible for all expenses and liabilities related thereto after
the Separation Date.
4.
Executive Release
. In consideration of the
terms of this Agreement as provided herein, except as to any
obligations provided for or assumed in this Agreement Executive
agrees to waive and release the Company, and each of its affiliated
or related entities, partnerships, parent or subsidiary
corporations, members, partners, stockholders, directors, officers,
employees, attorneys, agents, predecessors, successors and assigns,
and each and all of them (collectively referred to as the
“Company Releasees”), from all claims, damages,
agreements, charges of discrimination or complaints of any nature
whatsoever, whether or not now known, suspected or claimed, matured
or unmatured, fixed or contingent, which Executive or his
successors-in-interest ever had, now has, or may claim to have
against the Company Releasees, or any of them, whether directly or
indirectly, by reason of any act, event or omission concerning any
matter, cause or thing arising prior to the date of execution of
this Agreement, including, without limiting the generality of the
foregoing, any claims relating to or arising out of
(i) Executive’s employment or the cessation of that
employment; (ii) any agreement between Executive and any of
the Company Releasees, including, without limitation, the
Employment Agreement; (iii) any tort or tort-type claims;
(iv) any federal, state or governmental constitution, statute,
regulation or ordinance, including, but not limited to, Title VII
of the Civil Rights of 1964, the Employee Retirement Income
Security Act, the Age Discrimination in Employment Act, as amended
by the Older Workers Benefit Protection Act, the Americans With
Disabilities Act, and the California Fair Employment and Housing
Act; (v) any claim for wages, salary, bonuses, partnership
interests, profit sharing, and/or any other compensation or
benefit; (vi) any impairment of Executive’s ability to
obtain subsequent employment; or (vii) any permanent or
temporary disability or loss of future earnings as a result of
injury or disability arising from or associated with employment or
the termination of the employment relationship with any of the
Company Releasees. This release does not waive or release any claim
Executive may have to unemployment or workers’ compensation
benefits. This release includes a waiver of any rights Executive
may have under Section 1542 of the California Civil Code, or
any similar statute or law of any other state, regarding the waiver
of unknown claims. Section 1542 provides as
follows:
“A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.”
2
Notwithstanding the provisions of
Section 1542, and for the purpose of implementing a full and
complete release and discharge of all claims, Executive understands
and agrees that this Agreement is intended to include in its
effect, without limitation, all claims, if any, which Executive may
have and which Executive does not now know or suspect to exist in
his favor against the Company Releasees, and this Agreement
extinguishes any and all of those claims.
5.
Company Release
. As additional consideration
to Executive, and except as to any obligations provided for or
assumed in this Agreement, the Company agrees to waive and release
Executive, and each of his attorneys, agents, predecessors,
successors and assigns, and each and all of them (collectively
referred to as the “Executive Releasees”), from all
claims, damages, agreements, or complaints of any nature
whatsoever, whether or not known, suspected or claimed, matured or
unmatured, fixed or contingent, which the Company or its
successors-in-interest ever had, now has, or may claim to have
against the Executive Releasees, or any of them, whether directly
or indirectly, by reason of any act, event or omission concerning
any matter, cause or thing arising prior to the date of execution
of this Agreement, including, without limiting the generality of
the foregoing, any claims relating to or arising out of
(i) Executive’s employment or the cessation of that
employment; (ii) any agreement between Executive and any of
the Company Releasees, including, without limitation, the
Employment Agreement; (iii) any tort or tort-type claims;
(iv) any claim for fraud, self-dealing, or similar
clai
