exv10w1






Exhibit 10.1




OPNEXT, INC.




1 Christopher Way

Eatontown, New Jersey 07724




     This Amended and Restated Employment Agreement (this “Agreement”) is entered into as
of December 31, 2008, by and between Opnext, Inc., a Delaware corporation (“Opnext” or the
“Company”), and Robert J. Nobile (“Executive”). This Agreement amends and restates
in its entirety that certain Employment Letter entered into by and between Opnext and Executive,
dated as of March 5, 2001 (the “Original Letter”).



	 	 	 	 	 
	1.

	 	Employer:
	 	Opnext, Inc.
	 
	 	 	 	 
	2.

	 	Employee:
	 	Robert J. Nobile
	 
	 	 	 	 
	3.

	 	Position and
Duties:
	 	Executive shall be the Senior Vice President,
Finance and Chief Financial Officer of Opnext and
shall have the normal duties, responsibilities,
functions and authority of a Senior Vice President
of Finance and Chief Financial Officer of a company
the size and structure of Opnext. Executive shall
report directly to the Chief Executive Officer of
Opnext (“CEO”). Executive shall exercise such
further responsibilities and perform such further
duties as directed from time to time by the CEO and
the Board of Directors of Opnext (the “Board”).
	 
	 	 	 	 
	4.

	 	Base Salary:
	 	$265,000 per annum
	 
	 	 	 	 
	5.

	 	Annual Bonus:
	 	Executive will be eligible to participate in the
Company’s annual incentive bonus plan applicable to
similarly situated 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 Company 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 70% of his
annual base salary actually paid for such year.
Any annual bonus payable to Executive with respect
to a partial year of employment shall be prorated
to reflect the period of time during which
Executive was employed by the Company in such year.
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 Option:
	 	Opnext and Executive acknowledge and agree that Opnext has previously granted
Executive a stock option to acquire 50,000 shares of common






 









 






	 	 	 	 	 
	 

	 	 	 	stock of Opnext (after giving effect to the 3-for-1 reverse stock split)
(the “Option”) in satisfaction of the Company’s obligation under the
Original Letter to grant Executive the Option. The terms and conditions of
the Option are set forth in that certain Stock Option Agreement between
Opnext and Executive, dated as of March 5, 2001 (the “Stock Option
Agreement”), and the Amended and Restated 2001 Long Term Stock Incentive
Plan.
	 
	 	 	 	 
	7.

	 	Employment
Term:
	 	The initial term (the “Initial Term”) of Executive’s employment under this Agreement with Opnext shall
be for a period of three (3) years, commencing on the date hereof and ending on December 31, 2011.
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.
	 
	 	 	 	 
	8.

	 	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. In the event Executive decides to relocate his
primary residence in connection with Executive’s employment with Opnext, Opnext shall reimburse
Executive for reasonable and customary moving expenses in accordance with the Opnext plans or policies
as in effect from time to time.
	 
	 	 	 	 
	9.

	 	Vacation:
	 	Executive will receive four (4) weeks paid vacation time per annum.
	 
	 	 	 	 
	10.

	 	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 additional 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.
	 
	 	 	 	 
	11.

	 	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






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	 	 	 	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 (as
defined below) or (b) Executive’s resignation for Good Reason (as defined
below), the Company shall pay Executive as severance a lump-sum cash payment
equal to 100% of his then current annual base salary (the “Severance
Payment”). Subject to the Payment Delay (as defined below), the
Severance Payment shall be made to Executive within sixty (60) days after
the date of such Separation from Service (with the exact payment date to be
determined by the Company in its discretion). Executive’s right to receive
the Severance Payment 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.
	 
	 	 	 	 
	 

	 	 	 	The Severance Payment is intended to satisfy the short-term deferral
exemption under Treasury Regulation Section 1.409A-1(b)(4) and shall be made
not later than the last day of the applicable two and one-half (2 1/2) month
short-term deferral period with respect to the Severance Payment, within the
meaning of Treasury Regulation Section 1.409A-1(b)(4).
	 
	 	 	 	 
	 

	 	 	 	“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.






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	 	 	 	Except as set forth above, upon termination by Opnext without Cause or
resignation by Executive for Good Reason, Executive shall not be entitled to
receive any further compensation or payments hereunder (except for
Executive’s unpaid Base Salary, accrued vacation and expense reimbursements
relating to the period prior to the date of termination of employment). 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, including without limitation, the Severance Payment, shall be
paid to Executive during the six-month period following Executive’s
Separation from Service if 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.
	 
	 	 	 	 
	12.

	 	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 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.






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	 	 	 	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 expiration of 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 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 other equity-based awards held by Executive
shall be subject to the provisions of the incentive award plan and
applicable award agreement.
	 
	 	 	 	 
	13.

	 	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, Executive hereby agrees to enter
into a Confidential Information Agreement with
Opnext as reasonably requested by Opnext in a form
prescribed by Opnext (the “Confidentiality
Agreement”) in part to restrict the disclosure by
Executive of such trade secrets and other
confidential information.
	 
	 	 	 	 
	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 Confidentiality 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.
	 
	 	 	 	 
	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






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	 	 	 	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.
	 
	 	 	 	 
	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.
	 
	 	 	 	 
	 

	 	 	 	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 11 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.






6









 






	 	 	 	 	 
	 

	 	 	 	To the extent that any payments or reimbursements
provided to Executive under this Agreement,
including without limitation under Section 8
hereof, 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.






[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/
Harry L. Bosco	 
	 	 	Harry L. Bosco 	 
	 	 	CEO and President 	 
	 



	 	 	 	 	 
	 	AGREED TO AND ACCEPTED:

 	 
	 	/s/
Robert J. Nobile 	 
	 	Name:  	Robert J. Nobile 	 
	 	 	 
	 




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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 11 of that certain Employment Agreement, dated as of December 31, 2008, 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    .




	 	 	 
	 

Robert J. Nobile

	 	 







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