exv10w33






Exhibit 10.33




EMPLOYMENT AGREEMENT




OPNEXT, INC.




Christopher Way

Eatontown, New Jersey 07724




     This Employment Agreement (this “Agreement”) is entered into as of February 18, 2009,
by and between Opnext, Inc., a Delaware corporation (“Opnext” or the “Company”),
and Shri Dodani (“Executive”), in connection with the consummation of the mergers (the
“Mergers”) contemplated by that certain Agreement and Plan of Merger dated as of July 9,
2008, by and among the Company, StrataLight Communications, Inc., (“StrataLight”) Omega
Merger Sub 1, Inc., a wholly owned subsidiary of the Company, Omega Merger Sub 2, Inc., a wholly
owned subsidiary of the Company, and Jerome Contro, as the representative of the selling
stockholders (the “Merger Agreement”).



	 	 	 	 	 
	1.

	 	Employer:
	 	Opnext, Inc.
	 
	 	 	 	 
	2.

	 	Employee:
	 	Shri Dodani
	 
	 	 	 	 
	3.

	 	Position and
Duties:
	 	

Executive shall be the President, Opnext
Subsystems, Inc. and shall have the normal duties,
responsibilities, functions and authority of a
divisional president of a company the size and
structure of Opnext. Executive shall report
directly to the Chief Executive Officer of Opnext
(the “CEO”) or such other individual, if any, who
has been designated as the successor CEO.
Executive shall exercise such further
responsibilities and perform such further duties as
directed from time to time by the individual to
whom Executive is then reporting or the Board of
Directors of Opnext (the “Board”). Notwithstanding
the foregoing, either the CEO or Executive may, at
any time during the term of this Agreement, change
Executive’s position from President, Opnext
Subsystems, Inc. to Senior Advisor, and in the
event that either the CEO or Executive does so or
in the event that the parties otherwise so agree,
Executive agrees to provide such services to the
Company during the Term (as defined below) as may
be prescribed by the CEO consistent with such
position. Notwithstanding the foregoing, Executive
shall not, without Opnext’s prior consent, have the
right to change his position as contemplated by the
immediately preceding sentence in the event that
circumstances constituting Cause (as defined below)
then exist.
	 
	 	 	 	 
	4.

	 	Compensation

For Services:
	 	

In consideration of the services provided by
Executive under this Agreement, Opnext shall pay
Executive the following amounts: (i) during the
period of Executive’s service hereunder, Opnext
shall pay Executive an annual salary equal to
$115,000 per annum which shall be payable in






 









 





	 	 	 	 	 
	 

	 	 	 	accordance with Opnext’s standard payroll practices as in effect from time
to time, and (ii) in the event that Executive remains in continuous Service
(as defined below) with the Company until September 9, 2009, the Company
will pay Executive a lump-sum cash payment in an amount equal to $86,250 on
or within 5 business days following such date. For purposes of this
Agreement, “Service” shall mean Executive’s service with the Company
as an officer, employee or consultant of the Company. Executive shall be
deemed to remain in continuous Service with the Company so long as he
remains either an employee or consultant, and shall not be deemed to have
incurred a termination of Service with the Company unless and until his
status as both an employee and a consultant has terminated. In the event
that Executive’s Service with the Company is terminated by the Company
without Cause or by reason of Executive’s death or Disability (each as
defined herein) prior to September 9, 2009, the Company will pay Executive a
pro rata portion of the compensation described in clause (ii) above within 5
business days following the date of such termination in the form of lump-sum
cash payment equal to $86,250 multiplied by a fraction, the numerator of
which is equal to the number of days that have elapsed between January 9,
2009 and the date of such termination, and the denominator of which is equal
to 270.
	 
	 	 	 	 
	5.

	 	Opnext

Stock Option:
	 	

Subject to approval by the Compensation Committee
of the Board and subject to the terms and
conditions set forth in the Company’s Amended and
Restated 2001 Long Term Stock Incentive Plan (as
may be amended from time to time, the “Plan”) and
in the Option Agreement (as defined below), the
Company will grant Executive a nonqualified stock
option to acquire 200,000 shares of common stock of
Opnext with a per share exercise price equal to the
last quoted per share sales price of a share of
Opnext common stock as of the close of business on
the date of grant as reported by NASDAQ (the
“Option”). The Company will grant Executive the
Option on or as soon as practicable after the date
hereof. Subject to Executive’s continued Service
with the Company through the Vesting Date (as
defined below), the Option shall become fully
vested and exercisable with respect to all of the
shares covered by such Option on the date (the
“Vesting Date”) which is the earliest to occur of: (a) September 9, 2009; (b) the date on which
Executive’s position changes from President, Opnext
Subsystems, Inc. to Senior Advisor; or (c) the date
Executive’s Service is terminated (i) by Opnext
without Cause, or (ii) by reason of Executive’s
death or Disability.
	 
	 	 	 	 
	 

	 	 	 	To the extent not vested in accordance with the
foregoing sentence, the Option shall automatically
be cancelled upon Executive’s termination of
Service with Opnext.






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	 	 	 	Executive may exercise all or any part of the
Option, to the extent vested, at any time during
the period beginning on the Vesting Date and ending
on the third anniversary of the Vesting Date.
	 
	 	 	 	 
	 

	 	 	 	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.
	 
	 	 	 	 
	 

	 	 	 	The terms and conditions of the Option will be set
forth in a Stock Option Agreement in a form
prescribed by the Company which shall evidence the
grant of the Option (the “Option Agreement”).
	 
	 	 	 	 
	6.

	 	Term:
	 	The term (the “Term”) of Executive’s services under
this Agreement shall be for a period commencing as
of the date hereof and ending on September 9, 2009.
	 
	 	 	 	 
	7.

	 	Benefits:
	 	During his employment with Opnext, Executive will
be eligible to receive group welfare and retirement
benefits in accordance with Opnext company plans or
policies as in effect from time to time. Executive
hereby acknowledges and agrees that unless
otherwise determined by the Company in its absolute
discretion, Executive shall not be eligible to
receive an annual bonus or other incentive
compensation with respect to the services provided
hereunder or otherwise.
	 
	 	 	 	 
	8.

	 	Vacation:
	 	During the Term, Executive will accrue paid
vacation at a rate of three (3) weeks per annum.
	 
	 	 	 	 
	9.

	 	Retention/Non-Compete

Payment:
	 	



In the event that (i) Executive remains in
continuous Service through September 9, 2009, or Executive’s position changes
from President, Opnext Subsystems, Inc. to Senior Advisor (a “Position
Change”), or Executive’s Service with the Company is terminated by the Company
without Cause or by reason of Executive’s death or Disability prior to
September 9, 2009, and (ii) Executive has not materially breached his
obligations under the Non-Competition/Confidentiality Agreement (as defined
below), the Company will pay Executive a lump-sum cash payment in an amount
equal to (x) $250,000, minus (y) in the event that, following a Position
Change, Executive’s Service with the Company is terminated by the Company for
Cause or by Executive for any reason prior to September 9, 2009, an amount
equal to the aggregate amount of the payments made to Executive pursuant to
clause (i) of Section 4 above (the “Retention/Non-Compete Payment”). The
Retention/Non-Compete Payment shall be paid to Executive within 30 days
following September 9, 2009 (with the exact payment date determined by the
Company in its sole discretion). The parties hereby acknowledge and agree that
the






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	 	 	 	Company’s agreement to pay the Retention/Non-Compete Payment is in
consideration of Executive’s agreement to enter into the
Non-Competition/Confidentiality Agreement and his undertaking of the
obligations thereunder.
	 
	 	 	 	 
	 

	 	 	 	Executive’s right to receive the Retention/Non-Compete
Payment is conditioned on and subject to Executive’s execution within 21 days
(or, to the extent required by applicable law, 45 days) following September 9,
2009 and non-revocation by Executive of a general release of claims
substantially in the form attached hereto as Exhibit A.
	 
	 	 	 	 
	 

	 	 	 	Except as set forth above in Section 4, Section 5 and this
Section 9, upon termination of Executive’s Service by the Company without Cause
or by reason of Executive’s death or Disability, Executive shall not be
entitled to receive any further compensation or payments hereunder (except for
Executive’s unpaid base salary through the date of termination, accrued but
unpaid vacation and expense reimbursements relating to the period prior to the
date of termination and any ELBP payment to which Executive may otherwise be
entitled under Section 4.3 of the Merger Agreement). 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, shall be paid to Executive during the six-month period
following Executive’s “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”) if the Company reasonably 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.
	 
	10.

	 	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






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	 	 	 	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 Non-Competition/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 individual to whom Executive is then reporting, provided,
that such directed duties are consistent with Executive’s position with the
Company, provided, however, that, if a failure to perform as described in
this clause (vi) shall occur which is capable of cure as determined by the
Company in good faith, such event shall not constitute Cause hereunder
unless Executive fails to cure such failure to perform and the effects
thereof within ten (10) business days after written notice of such failure
to perform has been provided to Executive by the Company.
	 
	 	 	 	 
	 

	 	 	 	Upon notice by Opnext to Executive of a termination for Cause, the
“Termination Date” shall be the date on which such notice is
hand-delivered or the third (3rd) day following the date on which
such notice is mailed, as applicable, or as otherwise specified in the
notice of termination, to Executive. Upon termination for Cause,
resignation by Executive for any reason or a termination upon or following
expiration of the Term (as the case may be, and in the case of a termination
upon or following expiration of the Term, subject to the provisions of
Sections 5 and 9 hereof), Executive shall not be entitled to receive any
further compensation or payments hereunder (except for Executive’s unpaid
base salary through the date of termination, accrued but unpaid vacation and
expense reimbursements relating to the period prior to the Termination Date
and any ELBP payment to which Executive may otherwise be entitled under
Section 4.3 of the Merger Agreement).
	 
	 	 	 	 
	11.

	 	ELBP
	 	In the event of (i) a termination of Executive’s Service hereunder (a) that constitutes
a “Termination without Cause” (as defined in Section 4.3 of the Merger Agreement), (b) by
reason of Executive’s death or Disability, or (c) by reason of the expiration of the Term, or
(ii) a change in Executive’s position from President, Opnext Subsystems, Inc. to Senior
Advisor as contemplated in Section 3 hereof, Executive shall thereupon vest in his right to
receive all amounts payable to him under the






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	 	 	 	StrataLight Communications, Inc. Employee Liquidity Bonus Plan
(“ELBP”) (subject, however, to the provisions of the Merger
Agreement in respect of escrowed consideration), and such amounts shall be
paid to Executive at the times set forth in, and otherwise in accordance
with, Section 4.3 of the Merger Agreement.
	 
	 	 	 	 
	12.

	 	Non-Competition/Confidential

Information:
	 	

Executive acknowledges that during the course of
performing services for Opnext, Executive will
have substantial access to trade secrets and other
confidential information of Opnext and its
subsidiaries. In connection with the execution of
this Agreement and in consideration of the
Company’s agreement to pay Executive the
Retention/Non-Compete Payment as set forth in
Section 9 above, Executive hereby agrees to enter
into a Confidential Information, Non-Competition
and Invention Assignment Agreement with Opnext in
a form prescribed by Opnext (the
“Non-Competition/Confidentiality Agreement”) in
part to restrict the disclosure by Executive of
such trade secrets and other confidential
information.
	 
	 	 	 	 
	13.

	 	Effectiveness:
	 	This Agreement shall be effective as of the Merger
1 Effective Time (as defined in the Merger
Agreement). Effective as of the Merger 1
Effective Time, this Agreement, together with the
Non-Competition/Confidentiality Agreement,
replaces, terminates and supersedes all prior
understandings or agreements between Executive and
the Company, StrataLight or any of their
subsidiaries regarding the subject matter hereof,
including without limitation that certain
employment letter entered into by and between
StrataLight and Executive, dated as of May 5, 2006
(the “Original Letter”). Executive hereby agrees
that as of the Merger 1 Effective Time the
Original Letter and any other such agreement or
understanding is hereby terminated and shall be of
no further force or effect.
	 
	 	 	 	 
	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.
	 
	 	 	 	 
	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 Los Angeles, California 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.






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	 	 	 	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 California, without giving
effect to any choice of law or conflict of law
provision or rule (whether of the State of
California or any other jurisdiction) that would
cause the application of the laws of any
jurisdiction other than the State of California.
	 
	 	 	 	 
	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.
	 

	 	 	 	           1 Christopher Way
	 

	 	 	 	           Eatontown, New Jersey 07724
	 

	 	 	 	           Attention: General Counsel
	 
	 	 	 	 
	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.






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	 	 	 	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.
	 
	 	 	 	 
	20.

	 	Release:
	 	In consideration of the Company’s agreement to
enter into this Agreement, and for other good and
valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Executive hereby
agrees that, concurrently herewith, he shall
execute and deliver to the Company a general
release of claims substantially in the form
attached hereto as Exhibit B.






[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:
	 	/s/ Tammy L. Wedemeyer
	 

	 	 	 	 
	 

	 	Name:
	 	Tammy L. Wedemeyer
	 

	 	Title:
	 	Secretary
	 
	 	 	 	 
	 	 	AGREED TO AND ACCEPTED:
	 
	 	 	 	 
	 	 	/s/ Shri Dodani
	 	 	 
	 	 	Name: Shri Dodani






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