exv10w1






Exhibit 10.1




OPNEXT, INC.




1 Christopher Way

Eatontown, New Jersey 07724




     This Amended and Restated Employment Agreement (this “Agreement”) is dated as of May
15, 2009 (the “Effective Date”), by and between Opnext, Inc., a Delaware corporation
(“Opnext” or the “Company”), and Gilles Bouchard (“Executive”). This
Agreement amends and restates in its entirety the Prior Agreement (as defined below).



     WHEREAS, Executive and Opnext are currently parties to that certain Employment Agreement,
effective as of November 1, 2007 (the “Prior Agreement”); and



     WHEREAS, Executive and Opnext wish to amend and restate the Prior Agreement on the terms and
conditions set forth in this Agreement.



     NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:




	1. Employer: 
	 	Opnext, Inc.
	 
	2. Employee: 
	 	Gilles Bouchard
	 
	3. Position and
Duties: 
	 	Effective as of April 1, 2009, 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 for a company the size and structure
of the Company. Executive shall report directly to the Board of Directors of the Company
(the “Board”). All other senior executives of the Company 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 (as may be increased from time to time by the Board or
Compensation Committee thereof, in its sole discretion (the “Unreduced Base Salary”));
provided, however, that effective for the period commencing on April 1, 2009 and ending on the
six-month anniversary of such date, Executive’s annual base salary shall be reduced to
$360,000 per annum (the “Reduced Base Salary”). In the event that the Board or
Compensation Committee determines, in its sole discretion, that Executive’s base salary shall
remain at a level equal to the Reduced Base Salary (or such other higher reduced amount below
the Unreduced Base Salary) beyond the expiration of such six-month period , the base salary
shall remain at a level equal to the Reduced Base Salary (or such other higher reduced amount)
during such extended period as may be




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	 	determined by the Board or the Compensation Committee (but in no event
beyond March 31, 2010), and Executive hereby consents thereto.
	 
	5. Annual Bonus: 
	 	Commencing with the Company’s 2010 fiscal year, for each fiscal year of the
Company during the Initial Term and any Successive Term, Executive will be eligible to
participate in the Company’s annual incentive bonus plan applicable to the most senior
executives of the Company. The amount of Executive’s annual bonus will be based on the
attainment of individual and/or Company performance criteria established and evaluated by the
Board in accordance with the terms of such bonus plan as in effect from time to time, provided
that, subject to the terms of such bonus plan, Executive’s target annual bonus will be 100% of
the Unreduced Base Salary. Each annual bonus shall be paid not later than the last day of the
applicable two and one-half (2 1/2) month short-term deferral period with respect to such annual
bonus payment, within the meaning of Treasury Regulation Section 1.409A-1(b)(4).
	 



	6. Opnext
Stock Options: 
	 	(A)	 	2007 Stock Option Grant. Executive and Opnext acknowledge and agree that
Opnext has previously granted Executive a non-qualified stock option to acquire 250,000
shares of common stock of Opnext (the “2007 Stock Option”) in satisfaction of the
Company’s obligation under the Prior Agreement to grant Executive such stock option.
Subject to Executive’s continued employment with the Company, the 2007 Stock Option shall
vest and become exercisable with respect to one-fourth of the shares subject thereto on each
of the first four anniversaries of the Employment Start Date (as defined in Section 8
hereof). The term of the 2007 Stock Option shall expire no later than the 10th anniversary
of the date of grant. The 2007 Stock Option is subject to the terms and conditions set
forth in paragraph (D) below and in that certain Stock Option Agreement between Opnext and
Executive, dated as of November 15, 2007 (the “2007 Stock Option Agreement”), and
the Company’s Second Amended and Restated 2001 Long Term Stock Incentive Plan (as amended
from time to time, the “Stock Incentive Plan”).






	 	(B)	 	2009 Stock Option Grant. Subject to approval
by the Compensation Committee of the Board and subject to the terms and
conditions set forth in the Stock Incentive Plan and in the 2009 Stock
Option Agreement (as defined below), the Company shall, on the
Effective Date, grant Executive a non-qualified stock option to acquire
1,000,000 shares of common stock of Opnext (the “2009 Stock
Option”). The 2009 Stock Option will have a per share exercise
price equal to the last quoted per share sales price of a share of
common stock as of the close of business on the date of




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	 	 	 	grant as reported by NASDAQ. Subject to Executive’s continued
employment with the Company, the 2009 Stock Option shall vest and
become exercisable with respect to one-third of the shares subject
thereto on each of the first three anniversaries of the date of
grant. The term of the 2009 Stock Option shall expire no later than
the 5th anniversary of the date of grant. The 2009 Stock
Option shall be subject to the terms and conditions set forth in
paragraph (D) below and in a Stock Option Agreement in a form
prescribed by the Company which shall evidence the grant of the 2009
Stock Option (the “2009 Stock Option Agreement”) and the
Stock Incentive Plan.
	 
	 	(C)	 	2010 Stock Option Grant. Subject to approval
by the Compensation Committee of the Board and subject to the terms and
conditions set forth in the Stock Incentive Plan and in the 2010 Stock
Option Agreement (as defined below), provided that Executive is
employed by the Company on the date of grant, the Company shall, on
February 15, 2010, grant Executive a non-qualified stock option to
acquire 1,000,000 shares of common stock of Opnext (the “2010 Stock
Option,” and, together with the 2007 Stock Option and the 2009
Stock Option, the “Stock Options”). The 2010 Stock Option will
have a per share exercise price equal to the last quoted per share
sales price of a share of common stock as of the close of business on
the date of grant as reported by NASDAQ. The 2010 Stock Option shall
be subject to the terms and conditions set forth in paragraph (D) below
and in a Stock Option Agreement in a form prescribed by the Company
which shall evidence the grant of the 2010 Stock Option (such
agreement, together with the 2007 Stock Option Agreement and the 2009
Stock Option Agreement, the “Stock Option Agreements”) and the
Stock Incentive Plan.
	 
	 	(D)	 	Any unvested portion of the Stock Options shall
automatically be cancelled upon Executive’s termination of employment
with Opnext; provided, however, that in the event Executive’s
employment is terminated by Opnext without Cause (as defined in Section
13 hereof) or by Executive for Good Reason (as defined in Section 12
hereof) on any date other than a scheduled vesting date, the
installment of shares subject to the respective Stock Option that was
scheduled to vest on the next scheduled vesting date following
Executive’s termination of employment shall vest immediately prior to
such termination of employment. In addition, in the event that
Executive’s employment is terminated by reason of Executive’s death or
Disability (as defined below), the Stock Options, to the extent not
then vested and not previously canceled, shall immediately vest in
full.




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	 	 	 	In the event that Executive’s employment is terminated by the Company
without Cause or by Executive for Good Reason during the twelve-month
period immediately following a Change in Control (as defined in the
Stock Incentive Plan), the Stock Options shall, to the extent not
then vested and not previously canceled, immediately become fully
vested and exercisable.
	 
	 	 	 	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 any Stock Option Agreement, the terms and
provisions of the Stock Option Agreement will govern and prevail.






	7. Restricted
Stock: 
	 	Executive and Opnext acknowledge and agree that Opnext has
previously granted Executive 40,000 restricted shares of common
stock of Opnext (the “Restricted Stock”) in satisfaction of the
Company’s obligation under the Prior Agreement to grant Executive
the Restricted Stock.
	 
	 
	 	Subject to Executive’s continued employment with the Company, the
Restricted Stock shall vest with respect to one-half of the shares
on the first anniversary of the Employment Start Date and with
respect to one-half of the shares on the second anniversary of the
Employment Start Date.
	 
	 
	 	In the event of a Change in Control (as defined in the Stock
Incentive Plan) the Restricted Stock shall become fully vested
immediately prior to the consummation of such Change in Control.
If Executive’s employment with the Company terminates prior to the
second anniversary of the Employment Start Date (as defined
below), any unvested Restricted Stock as of such termination date
will be forfeited to the Company in its entirety; provided,
however, that in the event Executive’s employment is terminated by
the Company without Cause or by Executive for Good Reason, or by
reason of Executive’s death or Disability, then all Restricted
Stock shall immediately vest as of the date of such termination
and no forfeiture of such shares shall result.
	 
	 
	 	The terms and conditions of the Restricted Stock will be subject
to the additional terms and conditions as set forth in that
certain Restricted Stock Agreement between Opnext and Executive,
dated as of November 15, 2007 (the “Restricted Stock
Agreement”),
and the Stock Incentive Plan.




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	 	In the event of a conflict between any term or provision contained in this
Agreement and the Restricted Stock Agreement, the terms and provisions of
the Restricted Stock Agreement will govern and prevail.
	 
	8. Term: 
	 	Executive’s employment with Opnext commenced on November 1, 2007 (the “Employment
Start Date”). The initial term (the “Initial Term”) of Executive’s employment
with Opnext under this Amended and Restated Employment Agreement shall commence on the
Effective Date and shall end on May 15, 2013. Executive’s employment will be renewed
automatically upon expiration of the Initial Term for successive one-year periods (each such
period, a “Successive Term”), unless not less than sixty (60) days prior to the end of
the Initial Term or any Successive Term (as the case may be), either Executive or Opnext
provides written notice to the other of such party’s intention not to renew the employment.
	 
	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 receive four (4) weeks paid vacation time per annum.
	 
	11. Annual
Performance
Reviews: 
	 	Executive’s job performance shall be reviewed annually by the
Board. In conjunction with such annual performance review
process, Executive will be eligible for salary increases,
cash bonus awards (the bonus target is set forth under
Section 5 above) and stock option awards, which will be
subject to Company policy and vesting terms. Salary
increases, cash bonuses and stock option awards are awarded
at the discretion of the Board and will be determined by the
Board in its sole discretion based on the overall performance
of Opnext as well as Executive’s individual performance.
	 
	12. Termination
Without Cause or
for Good Reason: 
	 	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) a
termination of Executive’s employment by the Company
without Cause, or (b) Executive’s resignation for Good
Reason, subject to the Payment Delay (as defined below),
the Company will pay and provide Executive with the
following severance payments and benefits (collectively,
the “Severance Benefits”):






	 	(i)	 	the Company shall pay Executive a lump-sum cash
payment in an amount equal to 100% of the Unreduced Base Salary,
payable




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	 	 	 	within ten (10) days after the date of such Separation from Service
(with the exact payment date to be determined by the Company in its
discretion); and
	 
	 	(ii)	 	provided that Executive is not at the time of
payment eligible to participate in a group health insurance plan of a
subsequent employer, the Company shall pay Executive a lump-sum cash
payment in an amount equal to $30,000, payable within ten (10) days
after the eighteen (18) month anniversary of the date of Executive’s
Separation from Service (with the exact payment date to be determined
by the Company in its discretion). For the avoidance of doubt,
Executive shall be solely responsible for the payment of any premiums
associated with Executive’s election to receive continued health
coverage under COBRA and any other health insurance premiums and costs
following his termination of employment with Opnext.






	 
	 	Executive’s right to receive the Severance Benefits 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, Disability (as defined below) or failure by the
Company to renew the Initial Term or any Successive Term shall not be deemed
to be a termination by the Company “without Cause” for purposes of this
Agreement.
	 
	 
	 	“Good Reason” as used herein shall mean the occurrence of any of the
following without the consent of Executive:






	 	i.	 	a material and substantial diminution of
Executive’s duties or responsibilities; or
	 
	 	ii.	 	a material reduction by Opnext of Executive’s
base salary or target bonus as set forth in Section 5 above.






	 
	 	provided, however, that Executive’s resignation shall only constitute a
resignation for Good Reason hereunder if (x) Executive provides the Company
with written notice setting forth the specific facts or circumstances
constituting Good Reason within 20 days after the initial existence of such
facts or circumstances, (y) the Company has failed to cure such facts or
circumstances within 30 days after receipt of such written notice, and (z)
the date of Executive’s Separation from Service occurs no later than 60 days
after the initial occurrence of the facts or circumstances constituting Good
Reason. Notwithstanding anything contained herein, Executive hereby
expressly consents to the reduction of




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	 	Executive’s base salary to the Reduced Base Salary and the determination by
the Board or the Compensation Committee to continue the Reduced Base Salary
rate as provided in Section 2 above, and Executive hereby acknowledges and
agrees that that neither such reduction nor such future determination by the
Board or the Compensation Committee (nor any other action effectuating such
reduction or continuation) shall constitute “Good Reason” for purposes of
this Agreement, the Prior Agreement or any other agreement.
	 
	 
	 	Except as set forth above and in Sections 6 and 7 hereof, upon termination
by Opnext without Cause or resignation by Executive for Good Reason, (i)
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), (ii) Executive’s Stock Options and
Restricted Stock shall vest as provided in Sections 6 and 7 hereof and
shall, in each case, be subject to the provisions of the Stock Incentive
Plan and Executive’s applicable Stock Option Agreement or Restricted Stock
Agreement, as the case may be, and (iii) Executive’s other equity-based
awards shall be subject to the provisions of the Stock Incentive Plan and
the 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 Benefits, shall be
paid to Executive during the six-month period following Executive’s
Separation from Service if Executive is a “specified employee” at the time
of such Separation from Service (as determined by the Company in accordance
with Section 409A of the Code) and 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.
	 
	13. Termination
For Cause: 
	 	“Cause” as utilized herein shall mean:





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	 	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 below;
	 
	 	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 termination for Cause, resignation by Executive without
Good Reason or termination by reason of failure by Executive to renew the
Initial Term or any Successive Term (as the case may be), 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 Termination
Date). In the event of a termination for Cause, any unvested Stock Options
or Restricted Stock shall immediately be cancelled and terminate as of the
Termination Date. Vested Stock Options and Restricted Stock shall, in each
case, be subject to the provisions of the Stock Incentive Plan and
Executive’s applicable Stock Option Agreement or Restricted Stock Agreement,
as the case may be. Executive’s other equity-based awards shall be subject
to the provisions of the Stock Incentive Plan and the applicable award
agreement pursuant to which such awards were granted.
	 
	14. Death;
Disability;
Nonrenewal
by Opnext: 
	 	In the event that Executive incurs a Separation from Service
by reason of Executive’s death, Disability or failure by the
Company to renew the Initial Term or any Successive Term,
then, provided that Executive is not at the time of payment
eligible to participate in a group health insurance plan of a
subsequent employer, the Company shall pay Executive a
lump-sum cash payment in an amount equal to $30,000, payable
within ten (10) days after the eighteen (18) month anniversary
of the date of Executive’s Separation from Service (with the
exact payment date to be determined by the Company in its
discretion).




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	 	Except in the event of a Separation from Service by reason of
Executive’s death, Executive’s right to receive the payment
described in this Section 14 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.
	 
	15. Non-Competition
Agreement: 
	 	Executive hereby acknowledges and agrees that he has entered into a Non-Competition
Agreement with Opnext (the “Non-Competition Agreement”), and that such agreement remains in
full force and effect.
	 
	16. 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.
	 
	17. Withholdings: 
	 	All payments set forth herein which are subject to withholding shall be made
less any required withholdings.
	 
	18. Binding
Arbitration: 
	 	Any controversy arising out of or relating to this Agreement or the Non-Competition
Agreement shall be settled by binding arbitration in New York City, New York 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.
	 
	19. 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.
	 
	20. 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 follow:




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	 	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, CA 94538

Attention: General Counsel






	21. 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 21 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 12 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




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	 	Executive’s right to such payments or reimbursement shall not be subject to
liquidation or exchange for any other benefit.





[Signature Page Follows]




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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:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	AGREED TO AND ACCEPTED:

 	 
	 	 	 
	 	Gilles Bouchard 	 
	 	 	 	 
	 




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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 12 or 14 of that certain Amended and Restated Employment Agreement, dated as of May
15, 2009, 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.



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



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     (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___.



 

Gilles Bouchard





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