Exhibit 10.125


 


EXECUTIVE SEVERANCE AGREEMENT


 


This Executive Severance Agreement (the “Agreement”), dated as of February 27,
2009, is made and entered into by and between Paul Ross (“Executive”) and Meade
Instruments Corp., a Delaware corporation (the “Company”).


 


RECITALS


 


A.                                   Executive has served as Senior Vice
President - Finance and Chief Financial 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.


 


C.                                     The parties desire that the Employment
Agreement be terminated effective as of April 1, 2009 (the “Separation
Date”). Accordingly, Executive and the Company desire to enter into this
Agreement to set forth in detail, among other things, the payments 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.  Executive hereby resigns
from any position he may have as a director or officer with the Company or any
affiliate of the Company.


 


2.                                       Severance Payments. 
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, the Company hereby agrees to pay Executive on the Separation Date a
lump sum cash payment equal to Two Hundred Sixty Thousand Dollars ($260,000)
(the “Severance Payment”).


 


3.                                       Company Property. 
Executive agrees to return all Company property to the Company on the
Separation Date, including, without limitation, product samples or other
Company equipment of a material nature, confidential company documentation, or
any company records; 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 hereby waives and releases 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. Such 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.”


 


Notwithstanding the provisions of such 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 hereby
waives and releases 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


 


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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 such 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 that 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.


 


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 (as defined below), 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 8, 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,


 


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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.


 


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 supersedes and replaces 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.  The Company shall reimburse Executive for all
reasonable, out of pocket expenses incurred by Executive in fulfilling his
obligations under this Section 9.5.


 


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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.


 


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 


 


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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.                        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/Steven G.
  Murdock

  
	
   

  	
   

  	
  Steven G.
  Murdock

  
	
   

  	
   

  	
  Chief Executive
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  /s/Paul E. Ross

  
	
   

  	
  Paul E. Ross

  



 


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