Exhibit 10.1





Exhibit 10.1




OPNEXT, INC.




46429 Landing Parkway

Fremont, California 94538




This Employment Agreement (this “Agreement”) is entered into as of January 26, 2011, by and
between Opnext, Inc., a Delaware corporation (“Opnext” or the “Company”), and Harry L. Bosco
(“Executive”).



	 	 	 
	1. Employer:

	 	Opnext, Inc.
	 
	 	 
	2. Employee:

	 	Harry L. Bosco
	 
	 	 
	3. Position and
Duties:

	 	Effective as of December 10, 2010, Executive shall be the Chief Executive Officer and President of
Opnext and shall have the normal duties, responsibilities, functions and authority of a Chief Executive
Officer and President of a company the size and structure of Opnext. Executive shall report directly to
the Board of Directors of Opnext (the “Board”). All other senior executives of Opnext shall report to
Executive. Executive shall exercise such responsibilities and perform such duties as directed from time
to time by the Board.
	 
	 	 
	4. Base Salary:

	 	$500,000 per annum effective as of December 10, 2010.
	 
	 	 
	5. Annual Bonus:

	 	Unless otherwise determined by the Board in its sole discretion, Executive will not be eligible to
receive an annual incentive bonus or to participate in the Company’s annual incentive bonus plan.
	 
	 	 
	6. Opnext
Stock Options:

	 	Subject to approval by the Compensation Committee of the Board and subject to
the terms and conditions set forth in the Company’s Second Amended and Restated 2001 Long
Term Stock Incentive Plan (as amended from time to time, the “Plan”) and in the Stock Option
Agreement (as defined below), provided that Executive is employed by the Company on the date
of grant, the Company shall, on the Company’s next regular equity award grant date for
employees following the date hereof, grant Executive a non-qualified stock option (the
“Stock Option”) to purchase 375,000 shares of common stock of Opnext (the “Shares”). The
Stock Option will have a per share exercise price equal to the closing price of a share of
Opnext common stock on the date of grant as reported by NASDAQ. Subject to Executive’s
continued employment with the Company, the Shares subject to the Stock Option shall vest and
become exercisable in twelve (12) equal installments on each monthly anniversary of December
10, 2010; provided, however, that 100% of the Shares subject to the Stock Option shall vest
and become exercisable in full on the earliest to occur of (i) the date on






 


 









 





	 	 	 
	 

	 	 which Executive’s employment is
terminated by Opnext without Cause (as defined in Section 12 hereof), (ii)
the date on which the Board appoints a Chief Executive Officer and President
of Opnext to succeed Executive, (iii) the date on which Executive’s
employment is terminated by reason of Executive’s death or Disability (as
defined below), or (iv) the date of the occurrence of a Change in Control
(as defined in the Plan). The Stock Option shall have a term of seven (7)
years. The Stock Option shall be subject to the terms and conditions set
forth in the paragraphs below and in a Stock Option Agreement in a form
prescribed by the Company which shall evidence the grant of the Stock Option
(the “Stock Option Agreement”) and the Plan.
	 
	 	 
	 

	 	Any portion of the Stock Option that remains unvested as of the termination
of Executive’s employment (after giving effect to any accelerated vesting
that occurs in connection therewith) shall automatically be cancelled upon
Executive’s termination of employment.
	 
	 	 
	 

	 	As used herein, the term “Disability” shall mean that Executive is unable to
effectively perform his duties and responsibilities, as determined by the
Board for more than 180 days during any twelve (12) month period by reason
or any physical or mental injury, illness or incapacity.
	 
	 	 
	 

	 	In the event of a conflict between any term or provision contained in this
Agreement and the Stock Option Agreement, the terms and provisions of the
Stock Option Agreement will govern and prevail.
	 
	 	 
	7. Opnext
Restricted Stock
Units:

	 	Subject to approval by the Compensation Committee of the Board and subject to the terms
and conditions set forth in the Plan and in the RSU Agreement (as defined below), provided
that Executive is employed by the Company on the date of grant, the Company shall, on the
Company’s next regular equity award grant date for employees following the date hereof,
grant Executive 75,000 restricted stock units (the “RSUs”). Subject to Executive’s
continued employment with the Company, 100% of the RSUs shall vest in full on June 10, 2011;
provided, however, that 100% of the RSUs shall immediately vest in full on the earliest to
occur of (i) the date on which Executive’s employment is terminated by Opnext without Cause
(as defined in Section 12 hereof), (ii) the date on which the Board appoints a Chief
Executive Officer and President of Opnext to succeed Executive, (iii) the date on which
Executive’s employment is terminated by reason of Executive’s death or Disability (as
defined in Section 6 hereof), or (iv) the date of the occurrence of a Change in Control.
The RSUs shall be subject to the terms and conditions set forth in the paragraph below and
in a Restricted Stock Unit Award Agreement in a form prescribed by the Company which shall
evidence the grant of the RSUs (the “RSU Agreement”) and the Plan.






 


2









 





	 	 	 
	 

	 	Any RSUs that remain unvested as of the termination of Executive’s
employment (after giving effect to any accelerated vesting that occurs in
connection therewith) shall automatically be cancelled upon Executive’s
termination of employment.
	 
	 	 
	 

	 	In the event of a conflict between any term or provision contained in this
Agreement and the RSU Agreement, the terms and provisions of the RSU
Agreement will govern and prevail.
	 
	 	 
	8. Employment
Term:

	 	The term (the “Term”) of Executive’s employment
under this Agreement with Opnext shall commence on
the date hereof and shall end on the earlier to
occur of (i) January 26, 2012, or (ii) the
effective date of the Board’s appointment of a
Chief Executive Officer and President of Opnext to
succeed Executive, subject to earlier termination
in the event that Executive’s employment with the
Company is terminated sooner.
	 
	 	 
	9. Benefits:

	 	Executive will be eligible to receive group
welfare and retirement benefits in accordance with
Opnext plans or policies as in effect from time to
time.
	 
	 	 
	10. Vacation:

	 	Executive will accrue paid vacation time at the
rate of four (4) weeks per annum.
	 
	 	 
	11. Termination
Without Cause:

	 	In the event that Executive incurs a “separation
from service” (within the meaning of Section
409A(a)(2)(A)(i) of the Internal Revenue Code of
1986, as amended (the “Code”), and Treasury
Regulation Section 1.409A-1(h)) (“Separation from
Service”) by reason of a termination of
Executive’s employment by the Company without
Cause (as defined in Section 12 hereof), the
Company shall pay Executive as severance a
lump-sum cash payment equal to 100% of his
then-current annual base salary (the “Severance
Payment”). Subject to the Payment Delay (as
defined below), the Severance Payment shall be
made to Executive on the sixtieth (60th) day after
the date of such Separation from Service.
Executive’s right to receive the Severance Payment
is conditioned on and subject to Executive’s
execution within 21 days (or, to the extent
required by applicable law, 45 days) following the
date of Executive’s Separation from Service and
non-revocation by Executive of a general release
of claims substantially in the form attached
hereto as Exhibit A. For purposes of
clarification, a termination of Executive’s
employment by reason of Executive’s death or
Disability (as defined in Section 6 hereof) shall
not be deemed to be a termination by the Company
“without Cause” for purposes of this Agreement.
Notwithstanding the foregoing, in no event shall a
termination of Executive’s employment by reason of
the Board’s appointment of a Chief Executive
Officer and President of Opnext to succeed
Executive or by reason of the expiration of the
Term be
deemed to constitute a termination of Executive’s employment by the Company without Cause.






 


3









 





	 	 	 
	 

	 	The Severance Payment is intended to satisfy the short-term deferral
exemption under Treasury Regulation Section 1.409A-1(b)(4) and shall be made
not later than the last day of the applicable two and one-half (2 1/2) month
short-term deferral period with respect to the Severance Payment, within the
meaning of Treasury Regulation Section 1.409A-1(b)(4).
	 
	 	 
	 

	 	Except as set forth above, upon a termination of Executive’s employment by
Opnext without Cause, Executive shall not be entitled to receive any further
compensation or payments hereunder (except for Executive’s unpaid then
current base salary, accrued vacation and expense reimbursements relating to
the period prior to the date of termination of employment). In the event of
such a termination, any stock options or other equity-based awards held by
Executive shall be subject to the provisions of the incentive award plan and
applicable award agreement pursuant to which such awards were granted.
	 
	 	 
	 

	 	Notwithstanding anything to the contrary in this Agreement, no compensation
or benefits, including without limitation, the Severance Payment, shall be
paid to Executive during the six-month period following Executive’s
Separation from Service if the Company determines that paying such amounts
at the time or times indicated in this Agreement would be a prohibited
distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of
any such amounts is delayed as a result of the previous sentence (the
“Payment Delay”), then on the first business day following the end of such
six-month period (or such earlier date upon which such amount can be paid
under Section 409A of the Code without resulting in a prohibited
distribution, including as a result of Executive’s death), the Company shall
pay Executive a lump-sum amount equal to the cumulative amount that would
have otherwise been payable to Executive during such six-month period.






 


4









 





	 	 	 
	12. Termination
For Cause:

	 	“Cause” as utilized herein shall mean:
	 

	 	(i) the commission of a felony or the commission of any other act or
omission involving dishonesty or fraud with respect to Opnext or any of its
subsidiaries or affiliates or any of their customers or suppliers;
	 
	 	 
	 

	 	(ii) conduct that brings Opnext or any of its subsidiaries or affiliates
into substantial public disgrace or disrepute;
	 
	 	 
	 

	 	(iii) any material breach of the confidentiality agreement referred to in
Section 13 hereof;
	 
	 	 
	 

	 	(iv) fraud or embezzlement with respect to Opnext or any of its subsidiaries
or affiliates;
	 
	 	 
	 

	 	(v) gross negligence or willful misconduct with respect to Opnext or any of
its subsidiaries or affiliates; or
	 
	 	 
	 

	 	(vi) repeated failure to perform in any material respect Executive’s duties
as directed by the Board;
	 
	 	 
	 

	 	Upon notice by Opnext to Executive of a termination for Cause, the
“Termination Date” shall be the date on which such notice is mailed or
hand-delivered, or as otherwise specified in the notice of termination, to
Executive. Upon a termination by the Company for Cause, by Executive for
any reason, or by reason of the expiration of the Term, Executive shall not
be entitled to receive any severance or further compensation or payments
hereunder (except for Executive’s unpaid then current base salary, accrued
vacation and expense reimbursements relating to the period prior to the
Termination Date). In the event of any such termination, any unvested stock
options or other equity-based awards held by Executive shall be subject to
the provisions of the incentive award plan and applicable award agreement.
	 
	 	 
	13. Confidentiality
Agreement:

	 	Executive acknowledges and agrees that he has
previously executed a confidentiality agreement
with Opnext in part to restrict the disclosure by
Executive of such trade secrets and other
confidential information and that such agreement
remains in full force and effect and is a
condition of Executive’s employment with Opnext.
	 
	 	 
	14. Restrictions:

	 	Executive represents and warrants to Opnext that
there are no restrictions or agreements or
limitations on Executive’s right or ability to
enter into this Agreement or perform the terms set
forth herein.






 


5









 





	 	 	 
	15. Withholdings:

	 	All payments set forth herein which are subject to
withholding shall be made less any required
withholdings.
	 
	 	 
	16. Binding
Arbitration:

	 	Any controversy arising out of or relating to this
Agreement or the Non-Competition/Confidentiality
Agreement shall be settled by binding arbitration
in the San Jose, California area in accordance
with the Commercial Arbitration Rules of the
American Arbitration Association. The award
rendered in any such proceeding shall be final and
binding, and judgment upon the award may be
entered in any court having jurisdiction thereof.
The costs of any such arbitration proceedings
shall be borne equally by Opnext and Executive.
Neither party shall be entitled to recover
attorneys’ fee or costs expended in the course of
such arbitration or enforcement of the award
rendered thereunder.
	 
	 	 
	17. Governing Law:

	 	All issues and questions concerning the
construction, validity, enforcement and
interpretation of this Agreement shall be governed
by, and construed in accordance with, the internal
laws of the State of Delaware, without giving
effect to any choice of law or conflict of law
provision or rule (whether of the State of
Delaware or any other jurisdiction) that would
cause the application of the laws of any
jurisdiction other than the State of Delaware.
	 
	 	 
	18. Notices:

	 	All notices in connection herewith or provided for
hereunder shall be validly given or made only if
made in writing and delivered personally or mailed
by registered or certified mail, return receipt
requested, postage prepaid, to the party entitled
or required to receive the same, as follows:
	 
	 	 
	 

	 	If to Executive, addressed to him at his most recent address
on the records of the Company.



	 

	 	If to the Company, addressed to:


Opnext, Inc.

46429 Landing Parkway

Fremont, California 94538

Attention: General Counsel







 


6









 





	 	 	 
	19. Section 409A:

	 	To the extent applicable, this Agreement shall be
interpreted and applied consistent and in
accordance with Section 409A of the Code and
Department of Treasury regulations and other
interpretive guidance issued thereunder.
Notwithstanding any provision of this Agreement to
the contrary, if the Company determines that any
compensation or benefits payable under this
Agreement may not be either exempt from or
compliant with Section 409A of the Code and related
Department of Treasury guidance, the Company may in
its sole discretion adopt such amendments to this
Agreement or adopt other policies and procedures
(including
amendments, policies and procedures with retroactive effect), or take any
other actions, that the Company determines are necessary or appropriate to
(i) exempt the compensation and benefits payable under this Agreement from
Section 409A of the Code and/or preserve the intended tax treatment of such
compensation and benefits, or (ii) comply with the requirements of Section
409A of the Code and related Department of Treasury guidance; provided,
however, that this Section 19 shall not create any obligation on the part of
the Company to adopt any such amendment, policy or procedure or take any
such other action.
	 
	 	 
	 

	 	To the extent permitted under Section 409A of the Code, any separate payment
or benefit under this Agreement or otherwise shall not be deemed
“nonqualified deferred compensation” subject to Section 409A of the Code and
the Payment Delay pursuant to Section 11 hereof to the extent provided in
the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section
1.409A-1(b)(9) or any other applicable exception or provision of Section
409A of the Code.
	 
	 	 
	 

	 	To the extent that any payments or reimbursements provided to Executive
under this Agreement are deemed to constitute compensation to which Treasury
Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be
paid or reimbursed to Executive reasonably promptly, but not later than
December 31 of the year following the year in which the expense was
incurred. The amount of any such payments eligible for reimbursement in one
year shall not affect the payments or expenses that are eligible for payment
or reimbursement in any other taxable year, and Executive’s right to such
payments or reimbursement shall not be subject to liquidation or exchange
for any other benefit.






[Signature Page Follows]



 


7









 





SIGNATURE PAGE TO AGREEMENT




IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year
first above written.



	 	 	 	 	 
	 	OPNEXT, INC.

 	 
	 	By:  	/s/ Justin J. O’Neill
 	 
	 	 	Justin J. O’Neill 	 
	 	 	Senior Vice President and
General Counsel 	 



	 	 	 	 	 
	 	AGREED TO AND ACCEPTED:

 	 
	 	/s/ Harry L. Bosco
 	 
	 	Harry L. Bosco 	 



 


8









 





	 	 	 	 	 



EXHIBIT A




GENERAL RELEASE OF CLAIMS





For valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
undersigned does hereby release and forever discharge the “Releasees” hereunder, consisting of
Opnext, Inc. and each of its partners, associates, affiliates, subsidiaries, successors, heirs,
assigns, agents, directors, officers, employees, shareholders, representatives, lawyers,
accountants, insurers, and all persons acting by, through, under or in concert with them, or any of
them, of and from any and all manner of action or actions, cause or causes of action, in law or in
equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages,
losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed or
contingent (hereinafter called “Claims”), which the undersigned now has or may hereafter have
against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the
beginning of time to the date hereof. The Claims released herein include, without limiting the
generality of the foregoing, any Claims in any way arising out of, based upon, or related to the
employment or termination from employment of the undersigned by the Releasees, or any of them; any
Claim for benefits under any stock option or other equity-based incentive plan of the Releasees (or
any related agreement to which any Releasee is a party); any alleged breach of any express or
implied contract of employment; any alleged torts or other alleged legal restrictions on the
Releasees’ right to terminate the employment of the undersigned; and any alleged violation of any
federal, state or local statute or ordinance including, without limitation, Title VII of the Civil
Rights Act of 1964, the Age Discrimination In Employment Act, the Americans With Disabilities Act,
and the California Fair Employment and Housing Act. Notwithstanding the foregoing, this Release
shall not operate to release any Claims which the undersigned may have to payments or benefits
under Section 11 of that certain Employment Agreement, dated as of January 26, 2011, by and between
Opnext, Inc. and the undersigned.



THE UNDERSIGNED ACKNOWLEDGES THAT HE HAS BEEN ADVISED BY LEGAL COUNSEL AND IS FAMILIAR WITH
THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:



“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”



THE UNDERSIGNED, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS HE MAY
HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.


 


1









 





IN ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990, THE UNDERSIGNED IS HEREBY
ADVISED AS FOLLOWS:




(1) HE HAS THE RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS RELEASE;




(2) HE HAS TWENTY-ONE (21) DAYS TO CONSIDER THIS RELEASE BEFORE SIGNING IT; AND



(3) HE HAS SEVEN (7) DAYS AFTER SIGNING THIS RELEASE TO REVOKE IT, AND THIS RELEASE WILL
BECOME EFFECTIVE UPON THE EXPIRATION OF THAT REVOCATION PERIOD.



The undersigned represents and warrants that there has been no assignment or other transfer of
any interest in any Claim which he may have against the Releasees, or any of them, and the
undersigned agrees to indemnify and hold the Releasees, and each of them, harmless from any
liability, Claims, demands, damages, costs, expenses and attorneys’ fees incurred by the Releasees,
or any of them, as the result of any such assignment or transfer or any rights or Claims under any
such assignment or transfer. It is the intention of the parties that this indemnity does not
require payment as a condition precedent to recovery by the Releasees against the undersigned under
this indemnity.



The undersigned agrees that if he hereafter commences any suit arising out of, based upon, or
relating to any of the Claims released hereunder or in any manner asserts against the Releasees, or
any of them, any of the Claims released hereunder, then the undersigned agrees to pay to the
Releasees, and each of them, in addition to any other damages caused to the Releasees thereby, all
attorneys’ fees incurred by the Releasees in defending or otherwise responding to said suit or
Claim.



The undersigned further understands and agrees that neither the payment of any sum of money
nor the execution of this Release shall constitute or be construed as an admission of any liability
whatsoever by the Releasees, or any of them, who have consistently taken the position that they
have no liability whatsoever to the undersigned.



IN WITNESS WHEREOF, the undersigned has executed this Release this
 _____ 

day of                      20_.



	 	 	 	 	 
	 	 	 	 




 


2