Exhibit 10.113


 


EXECUTIVE
SEVERANCE AGREEMENT


 


This Executive Severance Agreement (the “Agreement”), dated
as of October 2, 2008, is made and entered into by and between Donald W.
Finkle; (“Executive”) and Meade Instruments Corp., a Delaware corporation (the “Company”).


 


RECITALS


 


A.            Executive
served as Senior Vice President, Operations 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 (as defined below).  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 and his separation from the
Company.


 


D.            Executive’s
employment relationship with the Company will continue to be governed by the
Employment Agreement until October 3, 2008 (the “Separation Date”).  As of the Separation Date, all terms,
conditions and obligations owed by the Company to Executive and by Executive to
the Company in connection with the termination of the Employment Agreement will
become effective.


 


NOW,
THEREFORE, in consideration of the covenants undertaken in
the Agreement, the Company and Executive agree as follows:


 


AGREEMENT


 


1.           Termination of Employment Agreement.  The terms, conditions and obligations of the
Employment Agreement shall remain in effect until the Separation Date.  On the Separation Date, the Employment
Agreement shall terminate and in connection therewith Executive will no longer
be a director, officer or employee of the Company or any of its affiliated
entities; provided, however, that notwithstanding anything to the contrary in
this Agreement, Sections 8 (Confidential Information), 9 (Inventions and
Patents), 10 (Non-Competition), 11 (Non-Solicitation of Customers), 12
(Non-Interference with Employees), 13 (Assistance in Patent Applications) and
14 (Indemnity) of the Employment Agreement, which are incorporated herein by
reference, shall continue to apply in accordance with their terms.  In connection therewith, Executive agrees to continue
to sign all necessary and appropriate documents on behalf of the Company
consistent with past practices, as appropriate.


 

















 


2.           Severance
Payments and Benefits.  In
connection with the termination of Executive’s 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 to be paid as set
forth on Exhibit A attached hereto (the “Severance Payment”).  The Severance Payment equal to $279,929.68 represents
the total payment for (i) severance, (ii) COBRA – HMO benefits, and (iii) applicable
portion of Performance Bonus.  The
Severance Payment shall be paid by the Company to the Executive on the Payment
Date (as defined below).


 


2.2   Continuation of Company Sponsored Benefits.  Executive’s rights, if any, regarding
continuation of group insurance coverage will be governed by the Consolidated
Omnibus Budget Reconciliation Act of 1984, as amended (“COBRA”), effective June 1,
2006.  The Company will provide Executive
with a COBRA notice, which will include the insurance premium rate for coverage
for Executive under COBRA.  Executive
will receive as part of Executive’s Severance Payment sufficient funds to cover
the Company sponsored portion of Executive’s group insurance coverage for a
period of twelve (12) months.  It will be
Executive’s responsibility and obligation to pay the applicable COBRA premium
for Executive’s coverage.  Other than
COBRA benefits as set forth above, participation by Executive in all other
Company sponsored benefits and plans shall terminate on the Separation Date.  In the event that neither COBRA nor Cal-COBRA is
available to Executive, the Company shall nevertheless provide insurance to
Executive that is commensurate with the coverage provided to Executive at the
same cost as has been historically paid by Executive as of the Separation Date
for a period of twelve (12) months.


 


2.3   Stock Option Vesting.  Executive owns options to purchase shares of
the Company’s common stock, the terms and conditions of which are subject to
the 1997 Plan and certain Stock Option Agreements, executed in connection with
each applicable stock option grant by and between the Company and Executive
(collectively, Executive’s “Options”).  In
accordance with the Executive Retention Agreement all options are considered
fully vested and may be exercised within ninety (90) days of termination date.


 


2.4   401K Account.  Nothing in this Agreement shall affect
Executive’s rights to his Company 401(k) account.


 


3.             Consulting
Services.  From and after
the Separation Date and for a period of 12 months (which may be extended by
mutual agreement) thereafter (the “Consulting Period”), Executive agrees to
make himself reasonably available to the Company’s Board of Directors and its
Executive Officers to consult on business and operational matters as reasonably
requested by such persons, subject to Executive’s prior commitments or
obligations.  Executive shall, if
requested and if reasonably convenient for Executive, provide such services to
the Company at the Company’s headquarters, and in such event, the Company shall
make reasonable space available to Executive at such location.  In consideration for such Consulting
Services, the 


 


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Company shall pay
Executive per hour of service as set forth in a Consulting Agreement (the “Consulting
Payments”).  The Consulting Payments
shall be paid promptly by Company check to an address designated by Executive.  Notwithstanding the above, there shall be no
minimum number of hours of Consulting Services required on the part of the
Company or Executive during the Consulting Period.  The specific terms and conditions of the
consulting arrangements shall be set forth in a Consulting Agreement to be
entered into by and between the Company and Executive.


 


4.             Independent Contractor Status.  Executive acknowledges that to the extent
Executive is engaged as a Consultant during the Consulting Period, Executive is
being engaged by the Company on an independent contractor basis.  Under no circumstances shall Executive look
to the Company as Executive’s employer, or as a partner, agent or principal
during such period.  Except as expressly
provided in this Agreement, Executive shall not be entitled to any benefits
accorded to the Company’s employees, including, without limitation, worker’s
compensation, disability insurance, vacation, sick pay, or participation in any
of the Company’s benefit plans such as its Employee Stock Ownership Plan or
401k Plan.  No compensation to be paid to
Executive for performing the services contemplated by the Consulting Agreement
shall be subject to any withholding or deductions provided by local, state or
federal law, which shall be the sole responsibility of Executive.


 


5.           Company
Property.  Executive
agrees to return all Company property to the Company immediately after the
Separation Date; including, without limitation, any computer equipment, 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.  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.


 


6.           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 or claims of fraud in the inducement,
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, 


 


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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.”


 


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.


 


7.             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 attorney’s, 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 claim; and (v) any federal, state or governmental constitution,
statute, regulation or ordinance.  This
release includes a waiver of any rights the Company may have under Section 1542
of the California Civil Code (the language of which is set forth above in
paragraph 6), or any similar statute or law of any other State, regarding the
waiver of unknown claims. 
Notwithstanding the provisions of Section 1542, and for the purpose
of implementing a full and complete release and discharge of all claims, the
Company understands and agrees that this Agreement is intended to include in
its effect, without limitation, all claims, if any, which the Company may have
and which the Company does not now know or suspect to exist in its favor
against Executive Releasees, and this Agreement extinguishes any and all of
those claims.


 


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8.             Acknowledgement.
Executive represents that he has had an opportunity to discuss all aspects of
this Agreement with his legal counsel, and understands all provisions of this
Agreement and is voluntarily entering into its terms.  Executive acknowledges the following: (i) he
has been given at least forty-five (45) days within which to consider this
Agreement; (ii) he has been advised in writing that he has the right to
and may consult with an attorney before executing this Agreement, and
acknowledges that he has had the opportunity to consult an attorney; and (iii) he
has seven (7) days following the execution of this Agreement to revoke the
Agreement.  To revoke the Agreement,
Executive must advise the Company in writing of his election to revoke it
within the seven (7) day period. 
Executive recognizes that he is specifically releasing, among other
claims, any claims he may have arising under the Age Discrimination in
Employment Act of 1967 (“ADEA”) and all
amendments thereto.  Executive
acknowledges that this Agreement is intended by the parties to comply with the
terms and provisions of the Older Workers Benefit Protection Act of 1990 and
all amendments thereto.  Accordingly, Executive acknowledges that
payment of the Severance Payments as set forth above will be remitted to
Executive’s home address within two (2) business days following the later
to occur of (i) the seven-day revocation period, or (ii) the
Separation Date (the “Payment Date”).


 


9.             Public
Statements.  Executive
agrees that he shall not directly or indirectly, make or ratify any statement,
public or private, oral or written, to any person that disparages, either
professionally or personally, the Company or its subsidiaries and affiliates,
past and present, and each of them, as well as its and their directors,
officers and employees, and each of them and the Company agrees that it shall
not directly or indirectly, make or ratify any statement, public or private,
oral or written, to any person that disparages Executive, either professionally
or personally.


 


10.           Indemnity.  The Company and Executive expressly
acknowledge that the provisions of their Indemnity Agreement, and the
provisions of the Employment Agreement set forth above, continue to apply to
Executive and the Company.  Accordingly,
the Company covenants and agrees that so long as Executive shall be subject to
any possible Proceeding, the Company, subject to the terms hereof, shall
promptly obtain and maintain in full force and effect directors’ and officers’
liability insurance (“D&O Insurance”) in reasonable amounts from
established and reputable insurers.  In
all D&O Insurance policies, Executive shall be provided the same rights and
benefits as are accorded to the most favorably insured of the Company’s
directors and officers.  Notwithstanding
anything in this Section, the Company shall have no obligation to obtain or
maintain D&O Insurance if the Company determines in good faith that
insurance is not reasonably available, the premium costs for insurance are
disproportionate to the amount of coverage provided or the coverage provided by
insurance is so limited by exclusions that it provides an insufficient
benefit.  For purposes of this Section,
the term “Proceeding” shall include any threatened, pending or completed
action, suit or proceeding, whether brought by or in the name of the Company or
otherwise and whether of a civil, criminal or administrative or investigative
nature, by reason of the fact that Executive is or was a director and/or
officer of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another enterprise, whether or not he
is serving in such capacity at the time any liability or expense is incurred
for which indemnification or reimbursement is to be provided under the
Indemnity Agreement.


 


11.           Miscellaneous
Provisions.


 


A.            Personal Service.  This
Agreement is personal to Executive and shall not, without the prior written
consent of the Company, be assignable by Executive.


 


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B.            Successors.  This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns and any such
successor or assignee shall be deemed substituted for the Company under the
terms of this Agreement for all purposes. 
As used herein, “successor” and “assignee” shall include any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires the stock of the
Company or to which the Company assigns this Agreement by operation of law or
otherwise.


 


C.            Modification.  This Agreement may not be amended or
modified other than by a written agreement executed by an Executive Officer of
the Company.


 


D.            Complete Agreement.  This Agreement (and the exhibit hereto) together
with the Consulting Agreement constitute and contain the entire agreement and
final understanding concerning Executive’s employment relationship with the
Company and the other subject matters addressed herein and therein between the
parties, and supersede and replace all prior negotiations and all agreements
proposed or otherwise, whether written or oral, concerning the subject matters
hereof and thereof, provided, however, that notwithstanding anything to the
contrary in this Agreement or the Consulting Agreement, Sections 8
(Confidential Information), 9 (Inventions and Patents), 10 (Non-Competition),
11 (Non-Solicitation of Customers), 12 (Non-Interference with Employees), 13
(Assistance in Patent Applications) and 14 (Indemnity) of the Employment
Agreement, which are incorporated herein by reference, shall continue to apply
in accordance with their terms and nothing herein or therein shall limit or
otherwise modify the indemnification obligations of the Company in favor of
Executive under the Company’s Certificate of Incorporation, Bylaws or the
Indemnity Agreement.  Except as contained
in the foregoing proviso, any representation, promise or agreement not
specifically included in this Agreement or the Consulting Agreement shall not
be binding upon or enforceable against either party.  This Agreement and the Consulting Agreement
are together considered as an integrated agreement.


 


E.             Litigation and Investigation Assistance.  Pursuant to the terms and conditions of the
Consulting Agreement, or any subsequent agreement pursuant to which Executive
performs services for or on behalf of the Company, Executive agrees to
cooperate to the extent reasonably requested in the Company’s defense against
any threatened or pending litigation or in any investigation or proceeding by
any governmental agency or body that relates to any events or actions which
occurred during the term of Executive’s employment.  To the extent the Company requests Executive’s
assistance in such matters at any time after the Consulting Period, Executive
shall be compensated by the Company at a mutually agreed upon hourly rate.  The Company shall reimburse Executive for all
reasonable, out of pocket expenses incurred by Executive in fulfilling his
obligations under this Section.


 


F.             Severability.  If any provision of this Agreement or the
application thereof is held invalid, the invalidity shall not affect other
provisions or applications of the Agreement which can be given effect without
the invalid provisions or applications and to this end the provisions of this
Agreement are declared to be severable.


 


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G.            Specific Performance.  It might be impossible to measure in money
the damage to a party if another party breaches this Agreement.  If any such failure occurs, the party damaged
might not have an adequate remedy at law or in damages.  Therefore, each party consents to the
issuance of an injunction or other appropriate relief, and the enforcement of
other equitable remedies, against it to compel performance of this Agreement.


 


H.            Choice of Law.  This Agreement shall be deemed to have been
executed and delivered within the State of California, and the rights and
obligations of the parties hereunder shall be construed and enforced in
accordance with, and governed by, the laws of the State of California without regard
to principles of conflict of laws.


 


I.              Cooperation in Drafting.  Each party has cooperated in the drafting and
preparation of this Agreement.  Hence, in
any construction to be made of this Agreement, the same shall not be construed
against any party on the basis that the party was the drafter.


 


J.             Counterparts.  This Agreement may be executed in
counterparts, and each counterpart, when executed, shall have the efficacy of a
signed original.  Photographic copies of
such signed counterparts may be used in lieu of the originals for any purpose.


 


K.            Arbitration.  As a
material inducement to enter into this Agreement, to the fullest extent allowed
by law, any controversy, claim or dispute between Executive and the Company
will be submitted to final and binding arbitration before a single neutral
arbitrator in Orange County, California for determination in accordance with
the JAMS Employment Arbitration Rules, as the exclusive remedy for such
controversy, claim or dispute.  In any
such arbitration, the parties may conduct discovery to the same extent as would
be permitted in a court of law.  The
arbitrator shall issue a written decision, and shall have full authority to
award all remedies which would be available in court.  The Company shall pay the arbitrator’s fees
and any JAMS administrative expenses. 
Any judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. 
BY AGREEING TO THIS BINDING ARBITRATION PROVISION, BOTH EXECUTIVE AND
THE COMPANY GIVE UP ALL RIGHTS TO TRIAL BY JURY.  This bilateral arbitration agreement is to be
construed as broadly as is permissible under relevant law.  In connection with any arbitration proceeding
commenced hereby, the prevailing party shall be entitled to reimbursement of
its reasonable attorney’s fees and costs.


 


L.             Headings.  The
section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.


 


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M.           Waiver. No
provision of this Agreement shall be modified, waived or discharged unless the
modification, waiver or discharge is agreed to in writing and signed by the
Executive and by an Executive Officer of the Company.  No waiver by either party of any breach of,
or of compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or provision or
of the same condition or provision at another time.


 


N.            Expenses. Each
party shall bear their own legal expenses and costs in connection with the
negotiation, preparation and execution of this Agreement.  In the event that any action or proceeding is
brought in connection with this Agreement the prevailing party therein shall be
entitled to recover its costs and reasonable attorney’s fees


 


O.            Executive’s Death.  In the event of Executive’s death during the
time in which any Severance Payment and/or the other benefits are to be
provided to Executive, the Company shall pay or provide such Payment or benefit
(but only to the extent that the underlying benefit plans permit such
contribution of benefits) to such person or persons as Executive shall have
directed in writing or, in absence of a designation, the estate of Executive.  In the event of Executive’s death, reference
in this Agreement to Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.


 


P.             Publicity.  To the extent the Company or Executive desire
to publicly announce the existence of this Agreement, or the termination of
Executive’s Employment Agreement, or as may be required by applicable law, both
parties agree to not make any public announcement or disclosure without the
other party’s prior written consent, such consent not to be unreasonably
withheld.


 


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IN
WITNESS WHEREOF, each
of the parties has executed this Agreement, in the case of the Company by its
duly authorized officer, as of the day and year set forth above.


 


 


	
   

  	
  MEADE
  INSTRUMENTS CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/STEVEN L. MUELLNER

  
	
   

  	
   

  	
  Steven L. Muellner

  
	
   

  	
   

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/PAUL E. ROSS

  
	
   

  	
   

  	
  Paul E. Ross

  
	
   

  	
   

  	
  Senior
  Vice President – Finance and

  
	
   

  	
   

  	
   Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/DONALD W. FINKLE

  
	
   

  	
   

  	
  Donald W. Finkle

  
	
   

  	
   

  	
  Senior
  Vice President – Operations

  



 


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