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.”


 


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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 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 4), 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.


 


6.             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 twenty-one (21) days from
the date of his receipt of this Agreement to consider this Agreement before
signing it, and he hereby waives the foregoing twenty-one day period; (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 this Agreement. To revoke
this 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


 


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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,
if Executive does not revoke this Agreement during the seven-day revocation
period above, payment of the Severance Payment will be remitted to Executive at
his home address within two (2) business days following the seven-day
revocation period (the “Payment Date”).


 


7.             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.


 


8.             Indemnity.  The Company
and Executive expressly acknowledge that the provisions of their Indemnity
Agreement, and the provisions of the Employment Agreement set forth in
paragraph 1 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 8, 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.


 


9.             Miscellaneous Provisions.


 


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


 


9.2.          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.


 


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


 


9.4.          Complete Agreement. 
This Agreement constitutes and contains 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, 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, 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 shall not be binding upon
or enforceable against either party.


 


9.5.          Litigation and Investigation Assistance. 
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 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.


 


9.6.          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.


 


9.7.          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.


 


9.8.          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.


 


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9.9.          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.


 


9.10.        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.


 


9.11.        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.


 


9.12.        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.


 


9.13.        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.


 


9.14.        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


 


9.15.        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.


 


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9.16.        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.


 


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/ Paul E. Ross

  
	
   

  	
   

  	
  Paul E. Ross,
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  /s/Steven L.
  Muellner

  
	
   

  	
  Steven L.
  Muellner

  



 


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