ex1023.htm


    

      
        

      

    

                                                                                                                                                                              EXHIBIT
10.23

     

     

    JDS
UNIPHASE CORPORATION

    430 North
McCarthy Blvd

    Milpitas,
California 95035

    USA

    


    408
546-5000

    www.jdsu.com

    


    


    December
5, 2008

    


    Kevin J.
Kennedy

    JDSU

    430 North
McCarthy Blvd

    Milpitas,
CA 95035

    


    Dear
Kevin:

    


    This letter agreement (“Agreement”)
confirms the terms of your transition from Chief Executive Officer and President
of JDS Uniphase Corporation and its subsidiaries and affiliated entities (the
“Company” or “JDSU”) presently scheduled for December 31, 2008 (the “Transition
Date”). The Effective Date of this Agreement will be the 8th day
following the date of your signature below.

    


    On or before the Transition Date the
Company will provide you with your final paycheck, which will include all
accrued, but unpaid base pay and accrued ESPP contributions, if
any.  Additionally, within seven (7) days of the Transition Date, the
Company will provide you with a bonus of $400,000, less applicable withholdings
as required by local, state and federal law.  Also, upon termination
of your employment you will be eligible for COBRA benefits
continuation.

    


    Because
you have agreed to continue service to the Company as member of the Board of
Directors, in the role of Vice Chairman,1 equity awards previously granted to you will
continue to vest and remain exercisable in accordance with the terms of each
grant agreement and applicable plan.    

    


    The
Company and you have agreed to enter a transitional consulting agreement,
pursuant to which the Company may benefit from your continued guidance and
support with our leadership transition and on key initiatives, for the period
from January 1, 2009 through December 31, 2009.  The terms and
consideration of that consulting relationship are set forth in that agreement,
provided herewith.

     

    Notwithstanding anything herein to the
contrary, this Agreement is intended to comply with the provisions of Internal
Revenue Code section 409A, as in effect from time to time.  To the
extent necessary to comply with the requirements of Code section
409A(a)(2)(B)(i) (prohibiting certain payments to a “specified employee” within
six (6) months of such employee’s separation from service), any payment
hereunder that may be made to you on account of the termination of your
employment with the Company shall be delayed by the Company if and to the extent
necessary to comply with the requirements of Code section
409A(a)(2)(B)(i).

    


    The
Company reaffirms its continuing obligations to you pursuant to the Company’s
Articles, Bylaws and applicable law to defend and indemnify you against claims,
actions and causes of action arising out of your employment and service to the
Company.  For clarity, these obligations will survive the Effective
Date of this Agreement.  You will also continue to be covered under
the applicable Company insurance policies relative to such
claims.  You agree to assist the Company as reasonable necessary to
effectuate the obligations reaffirmed under this paragraph.

    


    As a
result of your resignation of employment you will also be resigning from service
as a director and/or officer or similar capacity from Company subsidiaries and
affiliates to which you have for purposes of convenience been
appointed.  The Company’s legal department will work with you to
ensure you are relieved from these obligations.  Thank you in advance
for your assistance with that process.

    


    Your employee Proprietary Information
and Assignment of Inventions Agreement signed upon the commencement of your
employment, all agreements pertaining to your previously granted equity
incentive awards, and the Indemnification Agreement between you and the Company,
will continue in full force and effect in accordance with their
terms.  Except as described in this Agreement  and the
transitional consulting agreement, any further rights under any other agreements
related to your employment as President and Chief Executive Officer of the
Company, whether written or oral, shall cease as of the Effective Date hereof,
including without limitation any right to future payment, equity grants, or
other benefits.  This Agreement and the associated transitional
consulting agreement shall represent the entire understanding between you and
the Company regarding the terms of your employment and termination of
employment, will supersede any previous discussions and understandings except as
explicitly provided herein, and may not be modified except in writing signed by
both of us.

    


    In
consideration of the terms of this Agreement and exchange for the benefits
described above, you agree, on behalf of yourself, your successors and your
assigns, to release and absolutely discharge the Company and its present and
former officers, directors, agents, employees, attorneys, insurers and
affiliated entities from any claims, actions and causes of action, known or
unknown, that you may now have, or at any other time had, or shall or may have
against these released parties including claims arising from or related to your
employment, the termination of your employment, or any other matter, cause,
fact, thing, act or omission whatsoever occurring or existing at any time up to
and including the date of execution of this Agreement, including but not limited
to claims for compensation (including bonus and severance payments), stock
options or claimed rights related to stock options, breach of contract, wrongful
termination, retaliation, fraud, misrepresentation, unfair business practices,
breach of fiduciary duty, personal injury, defamation or national origin, race,
color, age, sex, sexual orientation, religious, disability, medical condition or
other discrimination or harassment under the Civil Rights Act of 1964, the
Family and Medical Leave Act, the Age Discrimination In Employment Act of 1967
(including the Older Workers’ Benefit Protection Act), the Americans with
Disabilities Act, the Fair Labor Standards Act, the Employee Retirement Income
Security Act of 1974, the Worker Adjustment and Retraining Notification Act, the
California Fair Employment and Housing Act, the California Labor Code (and
analogous laws of any other state), any other analogous state or federal laws or
any other applicable law, all as they have been or may be amended.  To
the fullest extent permitted by law, you agree not to file any claim, action or
demand based on any of the matters released above.

    


    You agree
that this release specifically covers known and unknown claims and you waive
your rights under Section 1542 of the California Civil Code or under any
comparable law of any other jurisdiction. Section 1542 states: "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”.

    


    Except to
the extent necessary or appropriate for in your continuing capacity as a member
of the Board of Directors or as a consultant, you agree to return all Company
property, including, without limitation, all records, other documents, or
materials.  For clarity, we acknowledge that you are retaining your
laptop computer and blackberry device.

    


    You and
the Company agree that any and all disputes arising out of the terms of this
Agreement or their interpretation, any of the matters released herein, or any
other dispute between the parties, shall be resolved by final and binding
arbitration before the American Arbitration Association ("AAA") under its
Employment Dispute Resolution Rules.  The arbitration shall take place
in the state in which you resided on the Transition Date.  In any such
arbitration, each side shall bear their own attorney’s fees and costs and the
prevailing party shall be entitled to injunctive relief in any court of
competent jurisdiction to enforce the arbitrator’s award.  Any dispute
regarding the enforceability of this agreement to arbitrate will be governed by
the Federal Arbitration Act, if applicable, and if not, then the arbitration act
of the state in which you last worked for the Company.

     

    If any
provision of this Agreement is for any reason found by an arbitrator or a court
of competent jurisdiction to be unenforceable, the remainder of this Agreement
shall continue in full force and effect. This Agreement may be executed in
counterparts and by facsimile, and each counterpart and facsimile shall have the
same force and effect as an original and shall constitute an effective, binding
agreement on the part of each of the undersigned.

    


    You agree
that you have been advised that you have twenty-one (21) days to consider
the terms of this Agreement (but may sign it at any time beforehand if you so
desire), and that you can consult an attorney in doing so. You also understand
that you can revoke your acceptance of the terms of this Agreement within
seven (7) days of signing it by sending a certified letter to that effect
to the Company’s General Counsel.  Notwithstanding the foregoing, you
agree that the portion of this Agreement that pertains to the release of claims
under the ADEA shall not become effective or enforceable until the
seven (7) day revocation period has expired, but that all other terms of
this Agreement will become effective upon your signature below.

    


    Kevin, we
thank you for your many contributions and long service to the Company and look
forward to your continued support and partnership.

    


    Sincerely,

    


    


    Matthew K. Fawcett

    General
Counsel

    


    Agreed
and Accepted:

     

    


    


    ____________________                                                                           _________________

    Kevin J.
Kennedy                                                                           Dated

    


    


    


    

      

    

      
      1 You are
a Class I Director with a current term expiring at the 2010 Annual Meeting of
Stockholders.