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EXHIBIT 2.4
EMPLOYEE MATTERS AGREEMENT
BETWEEN
MRV COMMUNICATIONS, INC.
AND
OPTICAL ACCESS, INC.
EFFECTIVE AS OF
SEPTEMBER 29, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS........................................................... 1
Section 1.1 401(k) Plan........................................................... 1
Section 1.2 AD&D Plan............................................................. 1
Section 1.3 Affiliate............................................................. 1
Section 1.4 Agreement............................................................. 1
Section 1.5 Ancillary Agreements.................................................. 2
Section 1.6 ASO Contracts......................................................... 2
Section 1.7 Assets................................................................ 2
Section 1.8 Benefits Committee.................................................... 2
Section 1.9 Bonus Plan............................................................ 2
Section 1.10 COBRA................................................................. 2
Section 1.11 Code.................................................................. 2
Section 1.12 Disability Plan....................................................... 2
Section 1.13 DOL................................................................... 2
Section 1.14 Effective Date........................................................ 2
Section 1.15 ERISA................................................................. 2
Section 1.16 FMLA.................................................................. 2
Section 1.17 General Assignment and Assumption Agreement........................... 2
Section 1.18 Group Insurance Policies.............................................. 2
Section 1.19 Group Life Plan....................................................... 2
Section 1.20 HCFA.................................................................. 3
Section 1.21 Health and Welfare Plans.............................................. 3
Section 1.22 Health Plans.......................................................... 3
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Section 1.23 HMO................................................................... 3
Section 1.24 HMO Agreements........................................................ 3
Section 1.25 IPO................................................................... 3
Section 1.26 IPO Closing Date...................................................... 3
Section 1.27 IPO Registration Statement............................................ 3
Section 1.28 IRS................................................................... 3
Section 1.29 Liabilities........................................................... 3
Section 1.30 Master Transitional Services Agreement................................ 3
Section 1.31 Material Feature...................................................... 3
Section 1.32 MRV................................................................... 4
Section 1.33 MRV Employee.......................................................... 4
Section 1.34 MRV Group............................................................. 4
Section 1.35 MRV Stock Value....................................................... 4
Section 1.36 MRV Terminated Employee............................................... 4
Section 1.37 Nasdaq................................................................ 4
Section 1.38 Option................................................................ 4
Section 1.39 Outsource............................................................. 4
Section 1.40 Optical Access........................................................ 4
Section 1.41 Optical Access Business............................................... 4
Section 1.42 Optical Access Claims................................................. 4
Section 1.43 Optical Access Employee............................................... 4
Section 1.44 Optical Access Group.................................................. 5
Section 1.45 Optical Access Stock Value............................................ 5
Section 1.46 Optical Access Terminated Employee.................................... 5
Section 1.47 Optical Access Transferred Employee................................... 5
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Section 1.48 Participating Company................................................. 6
Section 1.49 Person................................................................ 6
Section 1.50 Plan.................................................................. 6
Section 1.51 Post-Separation Period................................................ 6
Section 1.52 QDRO.................................................................. 6
Section 1.53 QMCSO................................................................. 6
Section 1.54 Ratio................................................................. 6
Section 1.55 Record Date........................................................... 6
Section 1.56 Restricted Stock...................................................... 6
Section 1.57 Revenue............................................................... 6
Section 1.58 SEC................................................................... 6
Section 1.59 Section 125 Plan...................................................... 7
Section 1.60 Separation............................................................ 7
Section 1.61 Separation Agreement.................................................. 7
Section 1.62 Separation Date....................................................... 7
Section 1.63 Subsidiary............................................................ 7
Section 1.64 Tax Sharing Agreement................................................. 7
Section 1.65 Unemployment Insurance Program........................................ 7
Section 1.66 Workers' Compensation Plan............................................ 7
ARTICLE II GENERAL PRINCIPLES.................................................... 8
Section 2.1 Assumption of Optical Access Liabilities.............................. 8
Section 2.2 Establishment of Optical Access Plans................................. 8
Section 2.3 Optical Access Under No Obligation to Maintain Plans.................. 9
Section 2.4 Optical Access's Participation in MRV Plans........................... 9
Section 2.5 Terms of Participation by Optical Access Transferred Employees
in Optical Access Plans............................................... 10
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Section 2.6 Benefits Committee and Dispute Resolution............................. 11
Section 2.7 Foreign Plans......................................................... 11
ARTICLE III DEFINED CONTRIBUTION PLAN............................................. 11
Section 3.1 401(k) Plan........................................................... 11
ARTICLE IV HEALTH AND WELFARE PLANS.............................................. 12
Section 4.1 Health Plans as of the Effective Date................................. 12
Section 4.2 Health Plans from the Separation Date through the Effective Date...... 13
Section 4.3 Group Life Plan....................................................... 14
Section 4.4 AD&D Plan............................................................. 14
Section 4.5 Long-Term Disability Plan............................................. 14
Section 4.6 Long-Term Care Plan................................................... 15
Section 4.7 Section 125 Plan...................................................... 15
Section 4.8 COBRA................................................................. 15
Section 4.9 Leave of Absence Plans and FMLA....................................... 16
Section 4.10 Workers' Compensation Plan............................................ 16
Section 4.11 Administrative Services............................................... 17
ARTICLE V EQUITY AND OTHER COMPENSATION......................................... 17
Section 5.1 Bonus Plan............................................................ 17
Section 5.2 Administrative Services............................................... 18
ARTICLE VI ADMINISTRATIVE PROVISIONS............................................. 18
Section 6.1 Master Transitional Services Agreement................................ 18
Section 6.2 Payment of Liabilities, Plan Expenses and Related Matters............. 18
Section 6.3 Transitional Staffing Services........................................ 19
Section 6.4 Sharing of Participant Information.................................... 19
Section 6.5 Reporting and Disclosure Communications to Participants............... 19
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Section 6.6 Audits Regarding Vendor Contracts..................................... 20
Section 6.7 Employee Identification Numbers....................................... 20
Section 6.8 Beneficiary Designation............................................... 20
Section 6.9 Requests for IRS and DOL Opinions..................................... 20
Section 6.10 Fiduciary Matters..................................................... 20
Section 6.11 Consent of Third Parties.............................................. 20
Section 6.12 MRV Intranet.......................................................... 20
ARTICLE VII EMPLOYMENT-RELATED MATTERS............................................ 21
Section 7.1 Terms of Optical Access Employment.................................... 21
Section 7.2 HR Data Support Systems............................................... 21
Section 7.3 Non-Solicitation of Employees......................................... 21
Section 7.4 Employment of Employees with U.S. Work Visas.......................... 22
Section 7.5 Confidentiality and Proprietary Information........................... 22
Section 7.6 PTO................................................................... 22
Section 7.7 Personnel Records..................................................... 22
Section 7.8 Medical Records....................................................... 22
Section 7.9 Unemployment Insurance Program........................................ 23
Section 7.10 Non-Termination of Employment; No Third-Party Beneficiaries........... 23
Section 7.11 Employment Litigation................................................. 23
ARTICLE VIII GENERAL PROVISIONS.................................................... 24
Section 8.1 Effect if Separation and/or IPO Does Not Occur........................ 24
Section 8.2 Relationship of Parties............................................... 24
Section 8.3 Affiliates............................................................ 24
Section 8.4 Incorporation of Separation Agreement Provisions...................... 24
Section 8.5 Governing Law......................................................... 24
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Section 8.6 Assignment............................................................ 24
Section 8.7 Severability.......................................................... 25
Section 8.8 Interpretation........................................................ 25
Section 8.9 Amendment............................................................. 25
Section 8.10 Termination........................................................... 25
Section 8.11 Conflict.............................................................. 25
Section 8.12 Counterparts.......................................................... 25
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EMPLOYEE MATTERS AGREEMENT
This EMPLOYEE MATTERS AGREEMENT is entered into as of September 29,
2000, between MRV Communications, Inc., a Delaware corporation, and Optical
Access, Inc., a Delaware corporation. Capitalized terms used herein and not
otherwise defined, shall have the respective meanings assigned to them in
Article I hereof.
WHEREAS, the Board of Directors of MRV has determined that it is in the
best interests of MRV and its shareholders to separate MRV's existing businesses
into two (2) independent businesses;
WHEREAS, in furtherance of the foregoing, MRV and Optical Access have
agreed to enter into this Agreement to allocate between them Assets, Liabilities
and responsibilities with respect to certain employee compensation, benefit
plans, programs and arrangements, and certain employment matters; and
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Wherever used in this Agreement, the following terms shall have the
meanings indicated below, unless a different meaning is plainly required by the
context. The singular shall include the plural, unless the context indicates
otherwise. Headings of sections are used for convenience of reference only, and
in case of conflict, the text of this Agreement, rather than such headings,
shall control.
Section 1.1 401(k) Plan. "401(k) Plan," when immediately preceded by "MRV,"
means the MRV Communications, Inc. 401(k) Plan, a defined contribution plan.
When immediately preceded by "Optical Access," "401(k) Plan" means the defined
contribution plan to be established by Optical Access pursuant to Section 2.2
and Article III.
Section 1.2 AD&D Plan. "AD&D Plan," when immediately preceded by "MRV," means
the MRV Accidental Death and Dismemberment ("AD&D") Plan. When immediately
preceded by "Optical Access," "AD&D Plan" means the accidental death and
dismemberment plan to be established by Optical Access pursuant to Sections 2.2
and 5.4.
Section 1.3 Affiliate. "Affiliate" means, with respect to any specified Person,
means any entity that Controls, is Controlled by, or is under common Control
with such Person. For this purpose, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such entity, whether through ownership of voting securities or other
interests, by control, or otherwise.
Section 1.4 Agreement. "Agreement" means this Employee Matters Agreement,
including all the Schedules hereto, and all amendments made hereto from time to
time.
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Section 1.5 Ancillary Agreements. "Ancillary Agreements" means all of the
underlying agreements, documents and instruments referred to, contemplated by,
or made a part of the Separation Agreement.
Section 1.6 ASO Contracts. "ASO Contracts" is defined in Subsection 4.1(c)(i)
and Schedule 4.1(c)(i).
Section 1.7 Assets. "Assets" is defined in Section 4.4 of the General Assignment
and Assumption Agreement.
Section 1.8 Benefits Committee. "Benefits Committee" means the benefits
committee established, implemented and operated pursuant to Section 2.6.
Section 1.9 Bonus Plan. "Bonus Plan," when immediately preceded by "MRV," means
the MRV Bonus Plan; provided, however, with respect to Optical Access Employees
in the MRV Bonus Plan, that "Bonus Plan" means the bonus plan as established and
implemented with respect to the Optical Access Employees. When immediately
preceded by "Optical Access," "Bonus Plan" means the bonus plan to be
established by Optical Access pursuant to Sections 2.2 and 6.1.
Section 1.10 COBRA. "COBRA" means the continuation coverage requirements for
"group health plans" under Title X of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended from time to time, and as codified in
Code Section 4980B and ERISA Sections 601 through 608.
Section 1.11 Code. "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
Section 1.12 Disability Plan. "Disability Plan," when immediately preceded by
"MRV," means the MRV Disability Plan which consists of the MRV Short-Term
Disability Plan and the MRV Long-Term Disability Plan. When immediately preceded
by "Optical Access," "Disability Plan" means the Optical Access Short-Term
Disability Plan and the Optical Access Long-Term Disability Plan, to be
established by Optical Access pursuant to Sections 2.2 and 5.7.
Section 1.13 DOL. "DOL" means the United States Department of Labor.
Section 1.14 Effective Date. "Effective Date" means that date which is six
months from the effective date of the IPO.
Section 1.15 ERISA. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
Section 1.16 FMLA. "FMLA" means the Family and Medical Leave Act of 1993, as
amended from time to time.
Section 1.17 General Assignment and Assumption Agreement. "General Assignment
and Assumption Agreement" means the Ancillary Agreement attached as Exhibit C to
the Separation Agreement.
Section 1.18 Group Insurance Policies. "Group Insurance Policies" is defined in
Subsection 4.1(c)(ii) and Schedule 4.1(c)(ii).
Section 1.19 Group Life Plan. "Group Life Plan," when immediately preceded by
"MRV," means the MRV Group Life Plan. When immediately preceded by "Optical
Access," "Group
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Life Plan" means the group life plan to be established by Optical Access
pursuant to Sections 2.2 and 5.3.
Section 1.20 HCFA. "HCFA" means the United States Health Care Financing
Administration.
Section 1.21 Health and Welfare Plans. "Health and Welfare Plans," when
immediately preceded by "MRV," means the MRV Health Plans, the MRV Section 125
Plan, and the health and welfare plans listed on Schedule 4.2(a) established and
maintained by MRV for the benefit of eligible employees of the MRV Group, and
such other welfare plans or programs as may apply to such employees as of the
Effective Date. When immediately preceded by "Optical Access," "Health and
Welfare Plans" means the Optical Access Health Plans, the Optical Access Section
125 Plan, and the health and welfare plans to be established by Optical Access
pursuant to Section 2.2, Article V, and Schedule 5.1(a).
Section 1.22 Health Plans. "Health Plans," when immediately preceded by "MRV,"
means the medical, HMO, vision, and dental plans and any similar or successor
Plans. When immediately preceded by "Optical Access," "Health Plans" means the
medical, HMO, vision and dental plans to be established by Optical Access
pursuant to Section 2.2 and Article V.
Section 1.23 HMO. "HMO" means a health maintenance organization that provides
benefits under the MRV Health Plans or the Optical Access Health Plans.
Section 1.24 HMO Agreements. "HMO Agreements" is defined in Subsection
4.1(c)(iii) and Schedule 4.1(c)(iii).
Section 1.25 IPO. "IPO" means the initial public offering of Optical Access
common stock pursuant to a registration statement on Form S-1 pursuant to the
Securities Act of 1933, as amended.
Section 1.26 IPO Closing Date. "IPO Closing Date" means the closing of the IPO,
which is currently scheduled to occur prior to December 31, 2000.
Section 1.27 IPO Registration Statement. "IPO Registration Statement" means the
Form S-1 registration number 333-________ filed with the SEC registering the
shares of common stock of Optical Access to be issued in the IPO, together with
all amendments thereto.
Section 1.28 IRS. "IRS" means the United States Internal Revenue Service.
Section 1.29 Liabilities. "Liabilities" means all debts, liabilities,
guarantees, assurances, commitments, and obligations, whether fixed, contingent
or absolute, asserted or unasserted, matured or unmatured, liquidated or
unliquidated, accrued or not accrued, known or unknown, due or to become due,
whenever or however arising (including, without limitation, whether arising out
of any Contract or tort based on negligence or strict liability) and whether or
not the same would be required by generally accepted accounting principles to be
reflected in financial statements or disclosed in the notes thereto. For this
purpose, "Contract" means any contract, agreement, lease, license, sales order,
purchase order, instrument or other commitment that is binding on any Person or
any part of its property under applicable law.
Section 1.30 Master Transitional Services Agreement. "Master Transitional
Services Agreement" means the Ancillary Agreement which is Exhibit G to the
Separation Agreement.
Section 1.31 Material Feature. "Material Feature" means any feature of a Plan
that could reasonably be expected to be of material importance, in the
aggregate, to the sponsoring
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employer or the participants (or their dependents or beneficiaries) of that
Plan, which could include, depending on the type and purpose of the particular
Plan, the class or classes of employees eligible to participate in such Plan,
the nature, type, form, source, and level of benefits provided under such Plan,
the amount or level of contributions, if any, required to be made by
participants (or their dependents or beneficiaries) to such Plan, and the costs
and expenses incurred by the sponsoring employer or Participating Companies for
implementing and/or maintaining such Plan.
Section 1.32 MRV. "MRV" means MRV Communications, Inc., a Delaware corporation.
In all such instances in which MRV is referenced in this Agreement, it shall
also be deemed to include a reference to each member of the MRV Group, unless it
specifically provides otherwise; MRV shall be solely responsible to Optical
Access for ensuring that each member of the MRV Group complies with the
applicable terms of this Agreement.
Section 1.33 MRV Employee. "MRV Employee" means an individual who, on the
Effective Date, is: (a) either actively employed by, or on leave of absence
from, the MRV Group; (b) a MRV Terminated Employee; or (c) an employee or group
of employees designated as MRV Employees by MRV and Optical Access, by mutual
agreement.
Section 1.34 MRV Group. "MRV Group" means MRV and each Subsidiary and Affiliate
of MRV (or any predecessor organization thereof).
Section 1.35 MRV Stock Value. "MRV Stock Value" means the closing per-share
price of MRV common stock as listed on the Nasdaq on the last trading day before
the Effective Date.
Section 1.36 MRV Terminated Employee. "MRV Terminated Employee" means any
individual who is a former employee of the MRV Group and who, on the Effective
Date, is not a Optical Access Transferred Employee.
Section 1.37 Nasdaq. "Nasdaq" means the Nasdaq National Market.
Section 1.38 Option. "Option," when immediately preceded by "MRV," means an
option to purchase MRV common stock pursuant to a Stock Plan. When immediately
preceded by "Optical Access," "Option" means an option to purchase Optical
Access common stock pursuant to a Stock Plan.
Section 1.39 Outsource. "Outsource" is defined in Section 5.14(c).
Section 1.40 Optical Access. "Optical Access" means Optical Access, Inc., a
Delaware corporation. In all such instances in which Optical Access is referred
to in this Agreement, it shall also be deemed to include a reference to each
member of the Optical Access Group, unless it specifically provides otherwise;
Optical Access shall be solely responsible to MRV for ensuring that each member
of the Optical Access Group complies with the applicable terms of this
Agreement.
Section 1.41 Optical Access Business. "Optical Access Business" means the
business and operations described in the IPO Registration Statement.
Section 1.42 Optical Access Claims. "Optical Access Claims" is defined in
Subsection 5.14(a).
Section 1.43 Optical Access Employee. "Optical Access Employee" means any
individual who is: (a) either actively employed by, or on leave of absence from,
the Optical Access Group
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on the Separation Date; (b) either actively employed by, or on leave of absence
from, the MRV Group as either part of a work group or organization, or common
support function that, at any time after the Separation Date and before the
Effective Date, moves to the employ of the Optical Access Group from the employ
of the MRV Group; (c) a Optical Access Terminated Employee; (d) employed by the
Optical Access Group; (e) any other employee or group of employees designated as
Optical Access Employees (as of the specified date) by MRV and Optical Access by
mutual agreement; or (f) an alternate payee under a QDRO, alternate recipient
under a QMCSO, beneficiary, covered dependent, or qualified beneficiary (as such
term is defined under COBRA), in each case, of an employee or former employee,
described in Subsections 1.43(a) through (e) with respect to that employee's or
former employee's benefit under the applicable Plan(s) (unless specified
otherwise in this Agreement, such an alternate payee, alternate recipient,
beneficiary, covered dependent, or qualified beneficiary shall not otherwise be
considered a Optical Access Employee with respect to any benefits he or she
accrues or accrued under any applicable Plan(s), unless he or she is a Optical
Access Employee by virtue of Subsections 1.43(a) through (e)).
Section 1.44 Optical Access Group. "Optical Access Group" means Optical Access
and each Subsidiary and Affiliate of Optical Access immediately after the
Separation Date and each Person that becomes a Subsidiary or Affiliate of
Optical Access after the Separation Date.
Section 1.45 Optical Access Stock Value. "Optical Access Stock Value" means the
opening per-share price of Optical Access common stock as listed on Nasdaq, as
applicable, on the first trading day after the Effective Date.
Section 1.46 Optical Access Terminated Employee. "Optical Access Terminated
Employee" means any individual who is: (a) a former employee of the MRV Group
who was terminated from the Optical Access Business on or before the Separation
Date; or (b) a former employee of the Optical Access Group. Notwithstanding the
foregoing, "Optical Access Terminated Employee" shall not, unless otherwise
expressly provided to the contrary in this Agreement, include: (a) an individual
who is a MRV Employee at the Effective Date; or (b) an individual who is
otherwise a Optical Access Terminated Employee, but who is subsequently employed
by the MRV Group prior to the Effective Date.
Section 1.47 Optical Access Transferred Employee. "Optical Access Transferred
Employee" means any individual who, as of the Effective Date, is: (a) either
actively employed by, or on a leave of absence from, the Optical Access Group;
(b) a Optical Access Terminated Employee; (c) an employee or group of employees
designated by MRV and Optical Access, by mutual agreement, as Optical Access
Transferred Employees; or (d) an alternate payee under a QDRO, alternate
recipient under a QMCSO, beneficiary, covered dependent, or qualified
beneficiary (as such term is defined under COBRA), in each case, of an employee
or former employee, described in Subsections 1.56(a) through (c) with respect to
that employee's or former employee's benefit under the applicable Plan(s)
(unless specified otherwise in this Agreement, such an alternate payee,
alternate recipient, beneficiary, covered dependent, or qualified beneficiary
shall not otherwise be considered a Optical Access Transferred Employee with
respect to any benefits he or she accrues or accrued under any applicable
Plan(s), unless he or she is a Optical Access Transferred Employee by virtue of
Subsections 1.60(a) through (c)). An employee may be a Optical Access
Transferred Employee pursuant to this Section regardless of whether such
employee is, as of the Effective Date, alive, actively employed, on a temporary
leave of absence from active employment, on layoff, terminated from employment,
retired or on
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any other type of employment or post-employment status relative to a MRV Plan,
and regardless of whether, as of the Effective Date, such employee is then
receiving any coverage under or benefits from a MRV Plan.
Section 1.48 Participating Company. "Participating Company" means: (a) MRV; (b)
any Person (other than an individual) that MRV has approved for participation
in, has accepted participation in, and which is participating in, a Plan
sponsored by MRV; and (c) any Person (other than an individual) which, by the
terms of such Plan, participates in such Plan or any employees of which, by the
terms of such Plan, participate in or are covered by such Plan.
Section 1.49 Person. "Person" means an individual, a partnership, a corporation,
a limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, and a governmental entity or any
department, agency or political subdivision thereof.
Section 1.50 Plan. "Plan" means any plan, policy, program, payroll practice,
arrangement, contract, trust, insurance policy, or any agreement or funding
vehicle providing compensation or benefits to employees, former employees,
directors or consultants of MRV or Optical Access.
Section 1.51 Post-Separation Period. "Post-Separation Period" means, for each
designated Plan, the period beginning as of the Separation Date and ending on
the date that no member of the Optical Access Group is using MRV benefit
delivery and administrative services with respect to that Plan.
Section 1.52 QDRO. "QDRO" means a domestic relations order which qualifies under
Code Section 414(p) and ERISA Section 206(d) and which creates or recognizes an
alternate payee's right to, or assigns to an alternate payee, all or a portion
of the benefits payable to a participant under the MRV 401(k) Plan.
Section 1.53 QMCSO. "QMCSO" means a medical child support order which qualifies
under ERISA Section 609(a) and which creates or recognizes the existence of an
alternate recipient's right to, or assigns to an alternate recipient the right
to, receive benefits for which a participant or beneficiary is eligible under
any of the Health Plans.
Section 1.54 Ratio. "Ratio" means the ratio determined by dividing the Optical
Access Stock Value by the MRV Stock Value.
Section 1.55 Record Date. "Record Date" means the close of business on the date
to be determined by the Board of Directors of MRV as the record date for
determining the stockholders of MRV entitled to receive shares of common stock
of Optical Access in the Distribution.
Section 1.56 Restricted Stock. "Restricted Stock," when immediately preceded by
"MRV," means shares of MRV common stock that are subject to transfer
restrictions or to employment and/or performance vesting conditions, pursuant to
a MRV Stock Plan. When immediately preceded by "Optical Access," "Restricted
Stock" means shares of Optical Access common stock that are subject to transfer
restrictions or to employment and/or performance vesting conditions, pursuant to
a Optical Access Stock Plan.
Section 1.57 Revenue. "Revenue" means net revenue as determined in accordance
with generally accepted accounting principles.
Section 1.58 SEC. "SEC" means the United States Securities and Exchange
Commission.
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Section 1.59 Section 125 Plan. "Section 125 Plan," when immediately preceded by
"MRV," means the MRV Premium Plan, the MRV FSA/Dependent Reimbursement Plan, and
the MRV FSA/Medical Reimbursement Plan. When immediately preceded by "Optical
Access," "Section 125 Plan" means the Optical Access Premium Plan, the Optical
Access FSA/Dependent Reimbursement Plan, and the Optical Access FSA/Medical
Reimbursement Plan to be established by Optical Access pursuant to Sections 2.2
and 5.11.
Section 1.60 Separation. "Separation" means the contribution and transfer from
MRV to Optical Access, and Optical Access's receipt and assumption of, directly
or indirectly, substantially all of the Assets and Liabilities currently
associated with the Optical Access Business and the stock, investments or
similar interests currently held by MRV in subsidiaries and other entities that
conduct such business.
Section 1.61 Separation Agreement. "Separation Agreement" means the Master
Separation Agreement, dated as of September 29, 2000, of which this is Exhibit E
thereto.
Section 1.62 Separation Date. "Separation Date" means the effective date and
time of each transfer of property, assumption of liability, license,
undertaking, or agreement in connection with the Separation which shall be 12:01
a.m., Pacific Time, October 31, 2000, and/or such other date(s) as may be fixed
by the Board of Directors of MRV.
Section 1.63 Subsidiary. "Subsidiary" of any person means a corporation or other
organization, whether incorporated or unincorporated, of which at least a
majority of the securities or interest having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization, is directly or indirectly owned or controlled by such Person or by
any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; provided, however that no Person that is not directly or
indirectly wholly-owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control that Person. Unless the context otherwise requires, reference to MRV and
its Subsidiaries shall not include the subsidiaries of MRV that will be
transferred to Optical Access after giving effect to the Separation.
Section 1.64 Tax Sharing Agreement. "Tax Sharing Agreement" means the Ancillary
Agreement, which is Exhibit F to the Separation Agreement.
Section 1.65 Unemployment Insurance Program. "Unemployment Insurance Program,"
when immediately preceded by "MRV," means the group unemployment insurance
policies purchased by MRV from time to time. When immediately preceded by
"Optical Access," "Unemployment Insurance Program" means any group unemployment
insurance program to be established by Optical Access pursuant to Section 9.9.
Section 1.66 Workers' Compensation Plan. "Workers' Compensation Plan" when
immediately preceded by "MRV" means the MRV Workers' Compensation Plan,
comprised of the various arrangements established by a member of the MRV Group
to comply with the workers' compensation requirements of the states in which the
MRV Group conducts business. When immediately preceded by "Optical Access,"
"Workers' Compensation Plan" means the workers' compensation program to be
established by Optical Access pursuant to Section 5.14.
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ARTICLE II
GENERAL PRINCIPLES
Section 2.1 Assumption of Optical Access Liabilities. Except as specified
otherwise in this Agreement or as mutually agreed upon by Optical Access and MRV
from time to time, effective as of Separation Date, Optical Access hereby
assumes and agrees to pay, perform, fulfill and discharge, in accordance with
their respective terms, all of the following:
(a) all Liabilities of, or relating to, Optical Access Employees or
Optical Access Transferred Employees, in each case relating to, arising out of,
or resulting from future, present or former employment with the Optical Access
Business (including Liabilities relating to, arising out of, or resulting from
MRV Plans and Optical Access Plans);
(b) all Liabilities relating to, arising out of, or resulting from any
other actual or alleged employment relationship with the Optical Access Group;
and
(c) all other Liabilities relating to, arising out of, or resulting from
obligations, liabilities and responsibilities expressly assumed or retained by
the Optical Access Group, or a Optical Access Plan pursuant to this Agreement.
Except as specified otherwise in this Agreement or as otherwise mutually agreed
upon by MRV and Optical Access from time to time, MRV shall transfer to Optical
Access amounts equal to trust assets, insurance reserves, and other related
assets as consistent with the applicable Plan transition that relates to, arises
out of, or results from Optical Access's pro rata interest in each MRV Plan.
Section 2.2 Establishment of Optical Access Plans.
(a) Health and Welfare Plans. Except as specified otherwise in this
Agreement, effective as of the Effective Date (or such other date(s) as MRV and
Optical Access may mutually agree), Optical Access shall adopt the Optical
Access Health and Welfare Plans. Except as otherwise specified in this
Agreement, to the extent administratively and financially practicable, each of
the foregoing Optical Access Plans as in effect as of the Effective Date (or
such other date(s) as MRV and Optical Access may mutually agree), shall be
comparable in the aggregate in all Material Features to the corresponding MRV
Plan as in effect as of such agreed upon date.
(b) 401(k) Plan. Except as specified otherwise in this Agreement,
effective as of the Effective Date (or such other date(s) as MRV and Optical
Access may mutually agree), Optical Access shall adopt the Optical Access 401(k)
Plan. Except as otherwise specified in this Agreement, to the extent
administratively and financially practicable, each Optical Access Plan in effect
as of the Effective Date (or such other date(s) as MRV and Optical Access may
mutually agree), shall be comparable in the aggregate in all Material Features
to the corresponding MRV Plan in effect as of such agreed upon date.
(c) Other Plans. Except as otherwise specified in this Agreement,
effective as of the Separation Date (or such other date(s) as MRV and Optical
Access may mutually agree), Optical Access shall adopt certain Optical Access
Plans that are specifically tied to its payroll practices, including, without
limitation, a Short-Term Disability Plan, a PTO Plan and a Deferred Compensation
Plan. Optical Access shall also adopt a Section 125 Plan, effective as of the
Effective Date (or such other date(s) as MRV and Optical Access may mutually
agree).
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Section 2.3 Optical Access Under No Obligation to Maintain Plans. Except as
specified otherwise in this Agreement, nothing in this Agreement shall preclude
Optical Access, at any time after the Effective Date, from amending, merging,
modifying, terminating, eliminating, reducing, or otherwise altering in any
respect any Optical Access Plan, any benefit under any Optical Access Plan or
any trust, insurance policy or funding vehicle related to any Optical Access
Plans, or any employment or other service arrangement with Optical Access
Employees or vendors (to the extent permitted by law).
Section 2.4 Optical Access's Participation in MRV Plans.
(a) Participation in MRV Plans. Except as specified otherwise in this
Agreement or as MRV and Optical Access may mutually agree, Optical Access shall,
until the Effective Date, continue to be a Participating Company in the MRV
Plans to the extent that Optical Access has not established a corresponding
Plan. Effective as of any date on or after the Separation Date and before the
Effective Date (or such other date(s) as MRV or Optical Access may mutually
agree), any member of the Optical Access Group not described in the preceding
sentence may, at its request and with the consent of MRV and Optical Access,
become a Participating Company in any or all of the MRV Plans, to the extent
that Optical Access has not yet established a corresponding Plan.
(b) MRV's General Obligations as Plan Sponsor. To the extent that
Optical Access is a Participating Company in any MRV Plan, MRV shall continue to
administer, or cause to be administered, in accordance with its terms and
applicable law, such MRV Plan, and shall have the sole and absolute discretion
and authority to interpret the MRV Plan, as set forth therein. MRV shall not
amend any Material Feature of any MRV Plan in which Optical Access is a
Participating Company, except to the extent:
(i) such amendment would not materially affect any coverage or
benefits of Optical Access Employees or Optical Access Transferred Employees
under such Plan;
(ii) Optical Access shall consent to such amendment and such
consent shall not be unreasonably withheld; or
(iii) such amendment is necessary or appropriate to comply with
applicable law.
(c) Optical Access's General Obligations as Participating Company.
Optical Access shall perform, with respect to its participation in the MRV
Plans, the duties of a Participating Company as set forth in each such Plan or
any procedures adopted pursuant thereto, including (without limitation):
(i) assistance in the administration of claims, to the extent
requested by the claims administrator of the applicable MRV Plan;
(ii) full cooperation with MRV Plan auditors, benefit personnel and
benefit vendors;
(iii) preservation of the confidentiality of all financial
arrangements MRV has or may have with any vendors, claims administrators,
trustees, service providers or any other entity or individual with whom MRV has
entered into an agreement relating to the MRV Plans; and
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(iv) preservation of the confidentiality of participant information
(including, without limitation, health information in relation to FMLA leaves)
to the extent not specified otherwise in this Agreement.
(d) Termination of Participating Company Status. Except as otherwise may
be mutually agreed upon by MRV and Optical Access, effective as of the Effective
Date or such other date as Optical Access establishes a corresponding Plan (as
specified in Section 2.2 or otherwise in this Agreement), Optical Access shall
automatically cease to be a Participating Company in the corresponding MRV Plan.
Section 2.5 Terms of Participation by Optical Access Transferred Employees in
Optical Access Plans.
(a) Non-Duplication of Benefits. Except as specified otherwise in this
Agreement, as of the Effective Date, or other later date that applies to the
particular Optical Access Plan established thereafter, the Optical Access Plans
shall be, with respect to Optical Access Transferred Employees, in all respects
the successors in interest to, and shall not provide benefits that duplicate
benefits provided by, the corresponding MRV Plans. MRV and Optical Access shall
agree on methods and procedures, including amending the respective Plan
documents, to prevent Optical Access Employees from receiving duplicate benefits
from the MRV Plans and the Optical Access Plans.
(b) Service Credit. Except as specified otherwise in this Agreement,
with respect to Optical Access Transferred Employees, each Optical Access Plan
shall provide that all service, all compensation and all other benefit-affecting
determinations that, as of the Effective Date, were recognized under the
corresponding MRV Plan shall, as of the Effective Date, receive full recognition
and credit and be taken into account under such Optical Access Plan to the same
extent as if such items occurred under such Optical Access Plan, except to the
extent that duplication of benefits would result. Notwithstanding the foregoing,
MRV and Optical Access shall recognize service with either MRV or Optical Access
that was recognized as of the Effective Date, except to the extent provided in
Subsection 2.5(a) above. The service crediting provisions shall be subject to
any respectively applicable "service bridging," "break in service," "employment
date," or "eligibility date" rules under the Optical Access Plans and the MRV
Plans.
(c) Assumption of Liabilities. Except as specified otherwise in this
Agreement (including, without limitation, the exception applicable to self-
insured Health Plans), the provisions of this Agreement for the transfer of
Assets relating to MRV Plans to Optical Access and/or the appropriate Optical
Access Plans are based upon the understanding of the parties that Optical Access
and/or the appropriate Optical Access Plan will assume all Liabilities of the
corresponding MRV Plan to or relating to Optical Access Transferred Employees,
as provided for herein. If any such Liabilities are not effectively assumed by
Optical Access and/or the appropriate Optical Access Plan, then the amount of
transferred Assets shall be recomputed accordingly, taking into account the
retention of such Liabilities by such MRV Plan, and Assets shall be transferred
from Optical Access and/or the appropriate Optical Access Plan to MRV and/or the
appropriate MRV Plan so as to place Optical Access and/or the appropriate
Optical Access Plan in the position it would have been in had the initial Asset
transfer been made in accordance with such recomputed amount of assets.
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Section 2.6 Benefits Committee and Dispute Resolution. From the date of this
Agreement through the later of the Effective Date or the end of the
Post-Separation Period, as applicable, the management of the Plans shall be
conducted under the supervision of the Benefits Committee. The Benefits
Committee shall consist of an equal number of representatives from MRV and
Optical Access as appointed by the MRV Senior Vice President, Human Resources,
and the functional equivalent of Optical Access, and shall provide strategic
oversight and direction of the cohesive administration of the Plans. Issues that
cannot be resolved by the Benefits Committee shall be decided, at the request of
either party, by the Optical Access Senior Vice President, Human Resources (or
the functional equivalent) (or his or her authorized delegate) and the MRV
Senior Vice President, Human Resources (or his or her authorized delegate).
After the exhaustion of the process, as specified herein, any outstanding issue
shall be resolved in accordance with Section 5.9 of the Separation Agreement,
entitled "Dispute Resolution."
Section 2.7 Foreign Plans. Optical Access and MRV each intend that matters,
issues, or Liabilities relating to, arising out of, or resulting from Foreign
Plans and non-U.S.-related employment matters be handled in a manner that is
consistent with comparable U.S. matters, issues, or Liabilities as reflected in
this Agreement (to the extent permitted by applicable law or as otherwise
specified in the applicable Section or Schedule thereto or Schedule 2.7).
ARTICLE III
DEFINED CONTRIBUTION PLAN
Section 3.1 401(k) Plan.
(a) 401(k) Plan. Effective as of the Effective Date (or such other date
as MRV and Optical Access may mutually agree), Optical Access shall establish,
or cause to be established, a separate trust, which is intended to be
tax-qualified under Code Section 401(a), to be exempt from taxation under Code
Section 501(a)(1), and to form the Optical Access 401(k) Plan.
(b) 401(k) Plan: Assumption of Liabilities and Transfer of Assets.
Effective as of the Effective Date (or such other date as MRV and Optical Access
may mutually agree):
(i) the Optical Access 401(k) Plan shall assume and be solely
responsible for all Liabilities relating to, arising out of, or resulting from
Optical Access Transferred Employees under the MRV 401(k) Plan; and
(ii) MRV shall cause the accounts of the Optical Access Transferred
Employees under the MRV 401(k) Plan that are held by its related trust to be
transferred to the Optical Access 401(k) Plan and its related trust, and Optical
Access shall cause such transferred accounts to be accepted by such Plan and its
related trust. Effective as of the Effective Date (or such other date as MRV and
Optical Access may mutually agree), Optical Access shall use its commercially
reasonable best efforts to enter into agreements satisfactory to Optical Access
to accomplish such assumption and transfer, the maintenance of the necessary
participant records, the appointment of [NAME OF TRUSTEE] as the initial trustee
under the Optical Access 401(k) Plan, and the engagement of [NAME OF
RECORDKEEPER] as the initial recordkeeper under the Optical Access 401(k) Plan.
Optical Access and MRV each agree to use their commercially reasonable best
efforts to accomplish this 401(k) Plan and related trust spin-off.
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(c) 401(k) Plan: Stock Considerations. As a result of the spin-off of
the MRV 401(k) Plan and to the extent that immediately prior to such time, the
MRV 401(k) Plan continues to consist of MRV employer securities, then the
resulting MRV 401(k) Plan and Optical Access 401(k) Plan shall both consist in
part of MRV and Optical Access employer securities. Optical Access and MRV shall
assume sole responsibility for ensuring that their respective company stock
funds, and underlying employer securities held in each such fund, are maintained
in compliance with all requirements of the SEC.
(d) No Distribution to Optical Access Transferred Employees. The MRV
401(k) Plan and the Optical Access 401(k) Plan shall provide that no
distribution of account balances shall be made to any Optical Access Transferred
Employee on account of the Optical Access Group ceasing to be an Affiliate of
the MRV Group as of the Effective Date.
ARTICLE IV
HEALTH AND WELFARE PLANS
Section 4.1 Health Plans as of the Effective Date.
(a) Optical Access Health Plans. As of the Effective Date (or such other
date(s) as MRV and Optical Access may mutually agree), Optical Access shall have
established the Optical Access Health Plans listed on Schedule 4.1(a) and,
correspondingly, Optical Access shall cease to be a Participating Company in the
MRV Health Plans. Optical Access shall be solely responsible for the
administration of the Optical Access Health Plans, including the payment of all
employer-related costs in establishing and maintaining the Optical Access Health
Plans, and for the collection and remittance of employee premiums, subject to
Section 6.2.
(b) Pending Treatments. Notwithstanding Subsection 4.1(a) above, all
treatments which have been pre-certified for or are being provided to a Optical
Access Transferred Employee as of the Effective Date shall be provided without
interruption under the appropriate MRV Health Plan (to the extent such continued
treatment is not provided under a Optical Access Health Plan) until such
treatment is concluded, discontinued, or, if earlier, through December 31, 2001,
pursuant to applicable Health Plan rules and limitations, but Optical Access
shall continue to be responsible for all Liabilities relating to, arising out
of, or resulting from such on-going treatments as of the Effective Date.
(c) Vendor Arrangements. MRV shall use its commercially reasonable best
efforts for and on behalf of Optical Access to procure, effective as of the
Effective Date (or such other date(s) as MRV and Optical Access may mutually
agree):
(i) third party ASO Contracts which are comparable in the aggregate
in all Material Features to the ASO Contracts entered into by MRV, as set forth
in Schedule 4.1(c)(i) (the "ASO Contracts);
(ii) Group Insurance Policies, which are comparable in the
aggregate in all Material Features to the Group Insurance Policies entered into
by MRV, as set forth in Schedule 4.1(c)(ii) (the "Group Insurance Policies");
and
(iii) an HMO Agreement which is comparable in the aggregate in all
Material Features to the HMO Agreement entered into by MRV, as set forth in
Schedule 4.1(c)(iii) (the "HMO Agreement").
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In each case, Optical Access shall, as of the Effective Date (or such
other date as MRV and Optical Access may mutually agree), establish, adopt
and/or implement such contracts, agreements or arrangements. Optical Access may,
at such future date after the Effective Date, elect to discontinue such
contracts, agreements or arrangements in accordance with Section 2.3.
(d) Continuance of Elections, Co-Payments and Maximum Benefits.
(i) As of the Effective Date and for the remainder of the plan year
in which the Effective Date occurs (or such other period as MRV and Optical
Access may mutually agree), Optical Access shall make its commercially
reasonable best efforts to cause the Optical Access Health Plans to recognize
and maintain all coverage and contribution elections made by Optical Access
Employees and Optical Access Transferred Employees under the MRV Health Plans
and apply such elections under the Optical Access.
Health Plans for the remainder of the period or periods for which such
elections are by their terms applicable. The transfer or other movement of
employment between MRV to Optical Access at any time upon or before the
Effective Date shall neither constitute nor be treated as a "status change" or
termination of employment under the MRV Health Plans or the Optical Access
Health Plans.
(ii) On and after the Effective Date, Optical Access shall cause
the Optical Access Health Plans to recognize and give credit for
(A) all amounts applied to deductibles, out-of-pocket
maximums, co-payments and other applicable benefit coverage limits with respect
to which such expenses have been incurred by Optical Access Transferred
Employees under the MRV Health Plans for the remainder of the calendar year in
which the Effective Date occurs, and
(B) all benefits paid to Optical Access Transferred
Employees under the MRV Health Plans for purposes of determining when such
persons have reached their lifetime maximum benefits under the Optical Access
Health Plans.
(e) HCFA. As of the Separation Date (or such other date as MRV and
Optical Access may mutually agree), Optical Access shall assume all Liabilities
relating to, arising out of, or resulting from claims, if any, under the HCFA
data match reports that relate to Optical Access Transferred Employees.
Section 4.2 Health Plans from the Separation Date through the Effective Date.
Except as otherwise agreed by MRV and Optical Access, for the period beginning
with the Separation Date and ending on the Effective Date (or such other period
as MRV and Optical Access may mutually agree), Optical Access shall be a
Participating Company in the MRV Health Plans listed on Schedule 4.2(a). MRV
shall administer claims incurred under the MRV Health Plans by Optical Access
Employees before the Effective Date but only to the extent that Optical Access
has not, before the Effective Date, established and assumed administrative
responsibility for a corresponding Health Plan. Any determination made or
settlements entered into by MRV with respect to such claims shall be final and
binding. MRV shall retain financial and administrative ("run-out") Liability and
all related obligations and responsibilities for all claims incurred by Optical
Access Transferred Employees before the Effective Date (or such other date(s) as
MRV and Optical Access may mutually agree), including any claims that were
administered by MRV as of, on, or after the Effective Date (or such other
date(s) as MRV and Optical Access may mutually agree). Except as set forth in
the preceding sentence, Optical Access shall reimburse
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MRV for any and all direct and indirect costs and expenses associated with its
participation in the MRV Health Plans, subject to Section 8.2.
Section 4.3 Group Life Plan.
(a) Optical Access's Participation in MRV Group Life Plan. Optical
Access shall, until the Effective Date (or such other date as MRV and Optical
Access may mutually agree), continue to be a Participating Company in the MRV
Group Life Plan. Optical Access shall cease to be a Participating Company in the
MRV Group Life Plan coincident with Optical Access's establishment of the
Optical Access Group Life Plan (or, if none, Optical Access's written notice to
MRV of its withdrawal as a Participating Company in the MRV Group Life Plan).
Optical Access shall reimburse MRV for any and all direct and indirect costs and
expenses associated with its participation in the MRV Group Life Plan, subject
to Section 8.2.
(b) Optical Access's Establishment of Optical Access Group Life Plan.
MRV shall make its commercially reasonable best efforts to procure an
arrangement on behalf of Optical Access for a Group Life Plan which shall be
comparable in the aggregate in all Material Features to the MRV Group Life Plan
as are financially, administratively and legally practicable. If MRV procures
such an arrangement, Optical Access will not unreasonably withhold its consent
to adopt such an arrangement to constitute the Optical Access Group Life Plan.
Optical Access will reimburse MRV for its direct and indirect costs and expenses
associated with its procurement, preparation, and implementation of the Optical
Access Group Life Plan, subject to Section 8.2.
Section 4.4 AD&D Plan.
(a) Optical Access's Participation in MRV AD&D Plan. Optical Access
shall, until the Effective Date (or such other date as MRV and Optical Access
may mutually agree), continue to be a Participating Company in the MRV AD&D
Plan. Optical Access shall cease to be a Participating Company in the MRV AD&D
Plan coincident with Optical Access's establishment of the Optical Access AD&D
Plan (or, if none, Optical Access's written notice to MRV of its withdrawal as a
Participating Company in the MRV AD&D Plan). Optical Access shall reimburse MRV
for any and all direct and indirect costs and expenses associated with its
participation in the MRV AD&D Plan, subject to Section 8.2.
(b) Optical Access's Establishment of Optical Access AD&D Plan. MRV
shall make its commercially reasonable best efforts to procure an arrangement on
behalf of Optical Access for an AD&D Plan which shall be comparable in the
aggregate in all Material Features to the MRV AD&D Plan as are financially,
administratively and legally practicable to Optical Access. If MRV procures such
an arrangement, Optical Access shall not unreasonably withhold its consent to
adopt such an arrangement to constitute the Optical Access AD&D Plan. Optical
Access will reimburse MRV for its direct and indirect costs and expenses
associated with its procurement, preparation and implementation of the Optical
Access AD&D Plan, subject to Section 8.2.
Section 4.5 Long-Term Disability Plan. Optical Access shall, until the Effective
Date (or such other date as Optical Access and MRV may mutually agree), continue
to be a Participating Company in the MRV Long-Term Disability Plan. MRV shall
use its commercially reasonable best efforts for and on behalf of Optical Access
to procure, effective as of the Effective Date (or such other date as MRV and
Optical Access may mutually agree), a Optical Access Long-Term Disability Plan.
Optical Access will reimburse MRV for any and all direct and indirect costs and
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expenses associated with its participation in the MRV Long-Term Disability Plan
and MRV's assistance in procuring, preparing, and implementing the Optical
Access Long-Term Disability Plan, subject to Section 8.2.
Section 4.6 Long-Term Care Plan. Through the Effective Date (or such other date
as MRV and Optical Access may mutually agree), Optical Access shall remain a
Participating Company in the MRV Long-Term Care Plan. MRV shall be responsible
for administering or causing to be administered the MRV Long-Term Care Plan.
Optical Access shall reimburse MRV for any and all direct and indirect costs and
expenses associated with its participation in the MRV Long-Term Care Plan,
subject to Section 8.2. The Optical Access Employees and Optical Access
Transferred Employees participating in the MRV Long-Term Care Plan shall have
the rights to take their existing benefits with them under such MRV Long-Term
Care Plan (a "portable benefit") at the time their rights to participation would
otherwise terminate.
Section 4.7 Section 125 Plan. Through the Effective Date (or such other date as
MRV and Optical Access may mutually agree), Optical Access and designated
members of the Optical Access Group shall remain Participating Companies in the
MRV Section 125 Plan. The existing elections for Optical Access Employees
participating in the MRV Section 125 Plan and for newly-eligible Optical Access
Employees who elect to participate in the MRV Section 125 Plan shall remain in
effect through the Effective Date (or such other date as MRV and Optical Access
may mutually agree). Effective on Effective Date (or such other date immediately
following the date that Optical Access's participation in the MRV Section 125
Plan terminates), Optical Access shall establish, or caused to be established,
the Optical Access Section 125 Plan and Optical Access shall be solely
responsible for the Optical Access Section 125 Plan. MRV will administer, or
cause to be administered, the MRV Section 125 Plan for Optical Access Employees
and the Optical Access Section 125 Plan through such date as MRV and Optical
Access may mutually agree. Optical Access shall reimburse MRV for any and all
direct and indirect expenses and costs attributable to Optical Access Employees,
subject to Section 8.2.
Section 4.8 COBRA. MRV shall be responsible through the Effective Date (or such
other date as MRV and Optical Access may mutually agree), for compliance with
the health care continuation coverage requirements of COBRA and the MRV Health
and Welfare Plans with respect to Optical Access Employees and qualified
beneficiaries (as such term is defined under COBRA). Optical Access shall be
responsible for providing MRV with all necessary employee change notices and
related information for covered dependents, spouses, qualified beneficiaries (as
such term is defined under COBRA), and alternate recipients pursuant to QMCSO,
in accordance with applicable MRV COBRA policies and procedures. As soon as
administratively practicable after the Effective Date (or such other date as MRV
and Optical Access may mutually agree), MRV shall provide Optical Access
(through hard copy, electronic format, or such other mechanism as is appropriate
under the circumstances), with a list of all qualified beneficiaries (as such
term is defined under COBRA) that relate to the Optical Access Group and the
relevant information pertaining to their coverage elections and remaining COBRA
time periods. Effective as of the Effective Date (or such other date as MRV and
Optical Access may mutually agree), Optical Access shall be solely responsible
for compliance with the health care continuation coverage requirements of COBRA
and the Optical Access Health and Welfare Plans for Optical Access Transferred
Employees and their qualified beneficiaries (as such term is defined under
COBRA); provided, however, Optical Access may elect to retain MRV's services in
such manner and for such period as MRV and Optical Access may mutually agree to
assist it
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with COBRA administration and Optical Access will reimburse MRV for its costs
and expenses associated with such administration, subject to Section 8.2.
Section 4.9 Leave of Absence Plans and FMLA.
(a) Allocation of Responsibilities After Separation Date. Effective as
of the Separation Date (or such other date as MRV and Optical Access may
mutually agree):
(i) Optical Access shall adopt Leave of Absence Plans which shall
be comparable in the aggregate in all Material Features to the MRV Leave of
Absence Plans as in effect on the Separation Date (or such other date as MRV and
Optical Access may mutually agree);
(ii) Optical Access shall honor all terms and conditions of leaves
of absence which have been granted to any Optical Access Employee under a MRV
Leave of Absence Plan or FMLA before the Separation Date by MRV, including such
leaves that are to commence after the Separation Date (or such other date as MRV
and Optical Access may mutually agree); and
(iii) Optical Access shall recognize all periods of service of
Optical Access Employees and Optical Access Transferred Employees with the MRV
Group, as applicable, to the extent such service is recognized by the MRV Group
for the purpose of eligibility for leave entitlement under the MRV Leave of
Absence Plans and FMLA; provided, however, that no duplication of benefits
shall, to the extent permitted by law, be required by the foregoing.
(b) Administration. Through the Effective Date (or such other such
period as MRV and Optical Access may mutually agree), MRV will administer, or
cause to be administered, the Optical Access Leave of Absence Plans in such
manner as MRV and Optical Access may mutually agree. Optical Access will
reimburse MRV for its costs and expenses associated with such administration,
subject to Section 8.2.
(c) Disclosure. Before the Effective Date (or such other date as MRV and
Optical Access may mutually agree), MRV shall provide to Optical Access copies
of all records pertaining to the MRV Leave of Absence Plans and FMLA with
respect to all Optical Access Employees and Optical Access Transferred Employees
to the extent such records have not been previously provided.
Section 4.10 Workers' Compensation Plan.
(a) Assumption of MRV and Optical Access Workers' Compensation Plan
Liabilities by Optical Access. Effective as of the Separation Date, Optical
Access shall assume and be solely responsible for all Liabilities relating to,
arising out of, or resulting from their claims by Optical Access Employees and
Optical Access Transferred Employees employment with the Optical Access Business
("Optical Access Claims") whether incurred before or after the Separation Date.
(b) Participation in the MRV Workers' Compensation Plan. Optical Access
shall, until the Effective Date (or such earlier date as Optical Access and MRV
may mutually agree), continue to be a Participating Company in the MRV Workers'
Compensation Plan. MRV shall continue to administer, or cause to be
administered, the MRV Workers' Compensation Plan in accordance with its terms
and applicable law. Optical Access shall fully cooperate with MRV and its
insurance company in the administration and reporting of Optical Access Claims
under the MRV Workers' Compensation Plan. Any determination made, or settlement
entered into, by
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or on behalf of MRV or its insurance company with respect to Optical Access
claims under the MRV Workers' Compensation Plan shall be final and binding.
Optical Access shall reimburse MRV and its insurance company for any and all
direct and indirect costs related to the Optical Access claims or Optical
Access's participation in the MRV Workers' Compensation Plan, including, but not
limited to loss costs, claims administration fees, legal expenses, premium
audits, and retrospective premium adjustments, subject to Section 8.2. MRV shall
transfer to and reimburse Optical Access any assets related to the Optical
Access claims or Optical Access's participation in the MRV Workers' Compensation
Plan, including, but not limited to, loss reserves, premium audits, and
retrospective premium adjustments.
(c) Outsourcing of Optical Access Workers' Compensation Plan Claims.
Optical Access shall have the right to transfer the administration of Optical
Access Claims incurred under the MRV Workers' Compensation Plan to a third party
administrator, vendor, or insurance company ("Outsource"). Optical Access shall
promptly notify MRV of its intent to transfer such claims, including the
material terms and conditions of the transfer before the effective date thereof.
MRV, upon the request of Optical Access, shall use its commercially reasonable
best efforts to procure such Outsourcing on behalf of Optical Access, assist
Optical Access in the transition to Outsourcing, and provide Optical Access with
any information that is in the possession of MRV and is reasonably available and
necessary to obtain such Outsourcing.
(d) Establishment of the Optical Access Workers' Compensation Plan. As
of the Effective Date, Optical Access shall be responsible for complying with
the workers' compensation requirements of the states in which the Optical Access
Group conducts business and for obtaining and maintaining insurance programs for
its risk of loss. Such insurance arrangements shall be separate and apart from
the MRV Workers' Compensation Plan. Notwithstanding the foregoing, MRV, upon the
request of Optical Access, shall use its commercially reasonable best efforts to
procure workers' compensation insurance policies on behalf of Optical Access,
assist Optical Access in the transition to its own separate insurance program,
and provide Optical Access with any information that is in the possession of MRV
and is reasonably available and necessary to either obtain insurance coverages
for Optical Access or to assist Optical Access in preventing unintended
self-insurance, in whatever form.
Section 4.11 Administrative Services. To the extent not provided otherwise in
this Article, MRV shall provide certain administrative services to Optical
Access in conjunction with both the MRV and Optical Access Health and Welfare
Plans in such manner and for such period as MRV and Optical Access may mutually
agree. Optical Access shall reimburse MRV for any and all direct and indirect
costs and expenses related thereto, subject to Section 8.2.
ARTICLE V
EQUITY AND OTHER COMPENSATION
Section 5.1 Bonus Plan. Employees of the Optical Access Business (including, for
this purpose, any employees of MRV who are designated as employees of the
Optical Access Business for purposes of the Separation) shall cease their
participation in the MRV Bonus Plan in the quarter ending prior to the Effective
Date (or such other date as MRV and Optical Access may mutually agree). Any
bonus pool, or portion thereof, that has been finally determined or accrued for
under the MRV Bonus Plan for the benefit of, or that is allocable to, employees
of
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the Optical Access Business (including for this purpose, any employees of MRV
who are designated as employees of the Optical Access Business for purposes of
the Separation) shall be paid to such Employees pursuant to the terms and
conditions of the MRV Bonus Plan, except that such payment shall be made on the
Effective Date (or such other date as MRV and Optical Access may mutually
agree). Effective as of the Effective Date (or such other date as MRV and
Optical Access may mutually agree), Optical Access shall establish the Optical
Access Bonus Plan for Optical Access Employees and Optical Access Transferred
Employees for Optical Access fiscal period(s) beginning on and after the
Effective Date (or such other date as MRV and Optical Access may mutually
agree), to be administered by the Compensation Committee of the Optical Access
Board of Directors.
Section 5.2 Administrative Services. To the extent not provided otherwise in
this Article, MRV shall provide certain administrative services to Optical
Access in conjunction with both the MRV and Optical Access Bonus Plans,
Executive Bonus Plan and Stock Plans in such manner and for such period as MRV
and Optical Access may mutually agree. Optical Access shall reimburse MRV for
any and all direct and indirect costs and expenses related thereto, subject to
Section 8.2.
ARTICLE VI
ADMINISTRATIVE PROVISIONS
Section 6.1 Master Transitional Services Agreement. On or prior to the
Separation Date (or such other date as Optical Access and MRV may mutually
agree), MRV and Optical Access may enter into a Master Transitional Services
Agreement covering the provisions of interim services, including financial,
accounting, legal, benefits-related and other services by MRV to Optical Access
or, in certain circumstances, vice versa, if appropriate or necessary.
Section 6.2 Payment of Liabilities, Plan Expenses and Related Matters.
(a) Expenses and Costs Chargeable to a Trust. Effective as of the
Separation Date, Optical Access shall pay its share of any contributions made to
any trust maintained in connection with a MRV Plan while Optical Access is a
Participating Company in that MRV Plan.
(b) Contributions to Trusts. With respect to MRV Plans to which Optical
Access Employees and Optical Access Transferred Employees make contributions,
MRV shall use reasonable procedures to determine Optical Access Assets and
Liabilities associated with each such Plan, taking into account such
contributions, settlements, refunds and similar payments.
(c) Administrative Expenses Not Chargeable to a Trust. Effective as of
the Separation Date, to the extent not charged pursuant to a Master Transitional
Services Agreement (as contemplated by Section 8.1) or another Ancillary
Agreement, and to the extent not otherwise agreed to in writing by MRV and
Optical Access, and to the extent not chargeable to a trust established in
connection with a MRV Plan (as provided in paragraph (a)), Optical Access shall
be responsible, through either direct payment or reimbursement to MRV in
accordance with Section 5.3 of the Separation Agreement and/or the Master
Transitional Services Agreement, for its allocable share of actual third party
and/or vendor costs and expenses incurred by MRV and additional costs and
expenses, subject to the methodology reasonably agreed upon by MRV and Optical
Access, in the administration of
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(i) the MRV Plans while Optical Access participates in such MRV
Plans, and
(ii) the Optical Access Plans, to the extent MRV procures,
prepares, implements and/or administers such Optical Access Plans. To the extent
not otherwise determinable through direct allocation of costs and expenses,
Optical Access's allocable share of such costs and expenses will be based on
Optical Access Revenue as a percentage of total MRV Revenue.
(d) Allocation of Costs and Expenses. Except as otherwise provided in
this Agreement, the Master Transitional Services Agreement, or in any underlying
transitional services schedule between MRV and Optical Access (as contemplated
in Section 8.1) relating to the Separation or the IPO, all costs and expenses of
the parties hereto in connection with the Separation and the IPO (including
underwriting discounts and commissions) and costs and expenses of the parties
hereto in connection with the Separation shall be allocated between Optical
Access and MRV. Optical Access and MRV shall each be responsible for their own
internal fees, costs and expenses incurred in connection with the Separation and
the IPO.
Section 6.3 Transitional Staffing Services. MRV will provide certain
transitional staffing services and other services as MRV and Optical Access may
mutually agree, as set forth on Schedule 6.3; provided, however, that for
purposes of the Workers' Compensation Plan (as set forth in Section 5.13) the
Transitional Staffing Services Agreement for finance shall control, to Optical
Access in such manner and for such period as MRV and Optical Access may mutually
agree. Optical Access shall reimburse MRV for any and all direct and indirect
costs and expenses related thereto, subject to Section 8.2.
Section 6.4 Sharing of Participant Information. In addition to the
responsibilities and obligations of MRV and Optical Access specified in Exhibit
I to the Separation Agreement, MRV and Optical Access shall share, or cause to
be shared, all participant information that is necessary or appropriate for the
efficient and accurate administration of each of the MRV Plans and the Optical
Access Plans during the respective periods applicable to such Plans as Optical
Access and MRV may mutually agree). MRV and Optical Access and their respective
authorized agents shall, subject to applicable laws of confidentiality and data
protection, be given reasonable and timely access to, and may make copies of,
all information relating to the subjects of this Agreement in the custody of the
other party or its agents, to the extent necessary or appropriate for such
administration.
Section 6.5 Reporting and Disclosure Communications to Participants. While
Optical Access is a Participating Company in the MRV Plans, Optical Access shall
take, or cause to be taken, all actions necessary or appropriate to facilitate
the distribution of all MRV Plan-related communications and materials to
employees, participants and beneficiaries, including (without limitation)
summary plan descriptions and related summaries of material modification(s),
summary annual reports, investment information, prospectuses, notices and
enrollment material for the MRV Plans and Optical Access Plans. Optical Access
shall reimburse MRV for the costs and expenses relating to the copies of all
such documents provided to Optical Access, except to the extent such costs are
charged pursuant to Section 8.2 (or are otherwise addressed in this Agreement)
or pursuant to an Ancillary Agreement. Optical Access shall assist MRV in
complying with all reporting and disclosure requirements of ERISA, including the
preparation of Form Series 5500 annual reports for the MRV Plans, where
applicable.
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Section 6.6 Audits Regarding Vendor Contracts. From the period beginning as of
the Separation Date and ending on such date as MRV and Optical Access may
mutually agree, MRV and Optical Access and their duly authorized representatives
shall have the right to conduct joint audits with respect to any vendor
contracts that relate to both the MRV Health and Welfare Plans and the Optical
Access Health and Welfare Plans. The scope of such audits shall encompass the
review of all correspondence, account records, claim forms, canceled drafts
(unless retained by the bank), provider bills, medical records submitted with
claims, billing corrections, vendor's internal corrections of previous errors
and any other documents or instruments relating to the services performed by the
vendor under the applicable vendor contracts. MRV and Optical Access shall agree
on the performance standards, audit methodology, auditing policy and quality
measures, reporting requirements, and the manner in which costs and expenses
incurred in connection with such audits will be shared.
Section 6.7 Employee Identification Numbers. Until the Effective Date (or such
other period as MRV and Optical Access may mutually agree), MRV and Optical
Access shall not change any employee identification numbers assigned by MRV. MRV
and Optical Access mutually agree to establish a policy pursuant to which
employee identification numbers assigned to either employees of MRV or Optical
Access shall not be duplicated between MRV and Optical Access.
Section 6.8 Beneficiary Designation. Subject to Section 8.11, all beneficiary
designations made by Optical Access Employees and Optical Access Transferred
Employees for the MRV Plans shall be transferred to and be in full force and
effect under the corresponding Optical Access Plans, in accordance with the
terms of each such applicable Optical Access Plan, until such beneficiary
designations are replaced or revoked by the Optical Access Employees and Optical
Access Transferred Employee who made the beneficiary designation.
Section 6.9 Requests for IRS and DOL Opinions. MRV and Optical Access shall make
such applications to regulatory agencies, including the IRS and DOL, as may be
necessary or appropriate. Optical Access and MRV shall cooperate fully with one
another on any issue relating to the transactions contemplated by this Agreement
for which MRV and/or Optical Access elects to seek a determination letter or
private letter ruling from the IRS or an advisory opinion from the DOL.
Section 6.10 Fiduciary Matters. MRV and Optical Access each acknowledge that
actions contemplated to be taken pursuant to this Agreement may be subject to
fiduciary duties or standards of conduct under ERISA or other applicable law,
and that no party shall be deemed to be in violation of this Agreement if such
party fails to comply with any provisions hereof based upon such party's good
faith determination that to do so would violate such a fiduciary duty or
standard.
Section 6.11 Consent of Third Parties. If any provision of this Agreement is
dependent on the consent of any third party (such as a vendor) and such consent
is withheld, MRV and Optical Access shall use their commercially reasonable best
efforts to implement the applicable provisions of this Agreement. If any
provision of this Agreement cannot be implemented due to the failure of such
third party to consent, MRV and Optical Access shall negotiate in good faith to
implement the provision in a mutually satisfactory manner.
Section 6.12 MRV Intranet. Through the Effective Date (or such other date as
Optical Access and MRV may mutually agree), MRV shall make its intranet site
available to Optical Access Employees on substantially the same terms as such
intranet site is made available to MRV
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Employees. Optical Access shall reimburse MRV for any and all costs and expenses
related to making its intranet site available to Optical Access Employees,
subject to the Master Transitional Services Agreement. MRV and Optical Access
shall use their commercially reasonable best efforts to mutually agree on the
appropriate methods by which Optical Access shall establish its own intranet
site.
ARTICLE VII
EMPLOYMENT-RELATED MATTERS
Section 7.1 Terms of Optical Access Employment. All basic terms and conditions
of employment for Optical Access Employees and Optical Access Transferred
Employees including, without limitation, their pay and benefits in the
aggregate, shall, to the extent legally and practicably possible, remain
substantially the same through the Effective Date as the terms and conditions
that were in place when the Optical Access Employee or Optical Access
Transferred Employee was employed by the MRV Group, as applicable.
Notwithstanding the foregoing, Optical Access Employees and Optical Access
Transferred Employees shall be required to execute a new agreement regarding
confidential information and proprietary developments in a form approved by
Optical Access by the Separation Date. In addition, nothing in the Separation
Agreement, this Agreement, or any Ancillary Agreement should be construed to
change the at-will status of the employment of any of the employees of the MRV
Group or the Optical Access Group.
Section 7.2 HR Data Support Systems. MRV shall provide human resources data
support for Optical Access Employees and Optical Access Transferred Employees
through the Effective Date (or such other period as MRV and Optical Access may
mutually agree). Optical Access agrees to fully reimburse MRV for any and all
direct and indirect costs and expenses associated with its use of the MRV human
resources data support systems, subject to Section 8.2. In the event that MRV
and Optical Access agree to extend the time period beyond the Effective Date,
then the costs and expenses will be computed in accordance with Section 8.2;
provided, however, an additional ten percent (10%) charge will be incurred by
Optical Access. MRV and Optical Access each reserves the right to discontinue
Optical Access's access to any MRV human resources data support systems with
sixty (60) days notice (or such other period as MRV and Optical Access may
mutually agree).
Section 7.3 Non-Solicitation of Employees. Subject to Section 5.12 of the
Separation Agreement, MRV and Optical Access each agree not to solicit or
recruit, without the other party's express written consent, the other party's
employees for a period of two (2) years following the Effective Date. To the
extent this prohibition is waived, any recruitment efforts by either MRV or
Optical Access during the period of one (1) year after the Effective Date shall
be coordinated with each party's Senior Vice President of Human Resources or his
or her designate and appropriate management. Notwithstanding the foregoing, this
prohibition on solicitation does not apply to actions taken by a party either:
(a) solely as a result of an employee's affirmative response to a
general recruitment effort carried out through a public solicitation or general
solicitation, or
(b) as a result of an employee's initiative.
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Section 7.4 Employment of Employees with U.S. Work Visas. Optical Access
Employees with U.S. work visas authorizing them to work for Optical Access will
continue to hold work authorization for the Optical Access Group after the
Separation Date. Optical Access will request amendments to the nonimmigrant visa
status of Optical Access Employees and Optical Access Transferred Employees with
U.S. work visas authorizing them to work for MRV, excluding the Optical Access
Group, to request authorization to work for Optical Access.
Section 7.5 Confidentiality and Proprietary Information. No provision of the
Separation Agreement or any Ancillary Agreement shall be deemed to release any
individual for any violation of the MRV non-competition guideline or any
agreement or policy pertaining to confidential or proprietary information of any
member of the MRV Group, or otherwise relieve any individual of his or her
obligations under such non-competition guideline, agreement, or policy.
Section 7.6 PTO. Effective as of the Separation Date (or such other date as MRV
and Optical Access may mutually agree), Optical Access shall establish the
Optical Access PTO Plan which shall be comparable in the aggregate in all
Material Features to the MRV PTO Plan. Effective as soon as administratively
practicable after the Separation Date (or such other date as MRV and Optical
Access may mutually agree), MRV shall transfer to Optical Access all data and
information relating to the MRV PTO Plan. Effective as soon as administratively
practicable following the Separation Date (or such other date as MRV and Optical
Access may mutually agree), Optical Access shall assume all Liabilities
attributable to Optical Access Employees under the MRV PTO Plan. In the event
that a MRV Employee or Optical Access Employee transfers his or her employment
to the other party before the Effective Date, such transfer of employment shall
not result in a payout or constitute a termination event for purposes of the PTO
Plan, and no duplication of benefits shall occur as a result of any such
transfer of employment between MRV and Optical Access. Furthermore, the
Liability attributable to any Optical Access Employee or MRV Employee who
transfers employment between MRV and Optical Access prior to the Effective Date
shall be assumed by the employer subsequent to the transfer.
Section 7.7 Personnel Records. Subject to applicable laws on confidentiality and
data protection, MRV shall deliver to Optical Access prior to the Effective Date
(or such other date as MRV and Optical Access may mutually agree), personnel
records of Optical Access Employees and Optical Access Transferred Employees to
the extent such records relate to Optical Access Employees' and Optical Access
Transferred Employees' active employment by, leave of absence from, or
termination of employment with Optical Access. Optical Access shall fully
reimburse MRV for any and all direct and indirect costs and expenses associated
with such delivery, subject to Section 8.2.
Section 7.8 Medical Records. Subject to applicable laws on confidentiality and
data protection, MRV shall deliver to Optical Access prior to the Effective Date
(or such other date as MRV and Optical Access may mutually agree), medical
records of Optical Access Employees and Optical Access Transferred Employees to
the extent such records
(a) relate to Optical Access Employees' and Optical Access Transferred
Employees' active employment by, leave of absence from, or termination of
employment with Optical Access, and
(b) are necessary to administer and maintain employee benefit plans,
including Health Plans and Workers' Compensation Plan and for determining
eligibility for paid and
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unpaid Leaves of Absence for medical reasons. Optical Access shall fully
reimburse MRV for any and all direct and indirect costs and expenses associated
with such delivery, subject to Section 8.2.
Section 7.9 Unemployment Insurance Program.
(a) Claims Administration Through Effective Date. Unless otherwise
directed by Optical Access, MRV shall use its commercially reasonable best
efforts to cause Optical Access to receive service from MRV's third party
unemployment insurance administrator through the Effective Date (or such other
date as MRV and Optical Access may mutually agree). Optical Access shall
reimburse MRV for its allocable share of fees paid and related costs and
expenses by MRV to its third party unemployment insurance administrator for
services rendered during such period, pursuant to the Master Transitional
Services Agreement. Optical Access shall cooperate with the unemployment
insurance administrator by providing any and all necessary or appropriate
information reasonably available to Optical Access.
(b) Claim Administration Post-Effective Date. Before the Effective Date,
MRV shall use its commercially reasonable best efforts for and on behalf of
Optical Access to procure an agreement with its third party unemployment
insurance administrator comparable in the aggregate in all Material Features to
the MRV third party unemployment insurance agreement, including, without
limitation, administration of all unemployment compensation claims of Optical
Access Transferred Employees and Optical Access Employees, regardless of whether
such claims were filed before, on, or after the Effective Date. Optical Access
shall not unreasonably withhold its consent to adopt such an agreement with such
administrator. Optical Access shall reimburse MRV for any and all direct and
indirect costs and expenses associated with such procurement, subject to the
Master Transitional Services Agreement.
Section 7.10 Non-Termination of Employment; No Third-Party Beneficiaries. No
provision of this Agreement, the Separation Agreement, or any Ancillary
Agreement shall be construed to create any right or accelerate entitlement to
any compensation or benefit whatsoever on the part of any Optical Access
Employee, Optical Access Transferred Employee or other former, present or future
employee of MRV or Optical Access under any MRV Plan or Optical Access Plan or
otherwise. Without limiting the generality of the foregoing:
(a) neither the Separation nor the termination of the Participating
Company status of Optical Access or any member of the Optical Access Group shall
cause any employee to be deemed to have incurred a termination of employment;
and
(b) no transfer of employment between MRV and Optical Access before the
Effective Date shall be deemed a termination of employment for any purpose
hereunder.
Section 7.11 Employment Litigation.
(a) Claims to be Transferred to Optical Access and/or Jointly Defended
by MRV and Optical Access. On or before the Separation Date, MRV and Optical
Access will enter into a written agreement that specifies the legal
responsibility and accompanying Liability for identified claims of Optical
Access.
(b) Unscheduled Claims. Optical Access shall have the sole
responsibility for all employment-related claims regarding Optical Access
Employees and Optical Access Transferred Employees that exist, or come into
existence, on or after the Separation Date relating to, arising
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out of, or resulting from their employment with the Optical Access Business or
the Optical Access Group.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1 Effect if Separation and/or IPO Does Not Occur. Subject to Section
10.10, if the Separation and/or IPO does not occur, then all actions and events
that are, under this Agreement, to be taken or occur effective as of the
Separation Date and/or IPO, or otherwise in connection with the Separation
and/or IPO, shall not be taken or occur except to the extent specifically agreed
by Optical Access and MRV.
Section 8.2 Relationship of Parties. Nothing in this Agreement shall be deemed
or construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, the
understanding and agreement being that no provision contained herein, and no act
of the parties, shall be deemed to create any relationship between the parties
other than the relationship set forth herein.
Section 8.3 Affiliates. Each of MRV and Optical Access shall cause to be
performed and hereby guarantee the performance of any and all actions of the MRV
Group or the Optical Access Group, respectively.
Section 8.4 Incorporation of Separation Agreement Provisions. The following
provisions of the Separation Agreement are hereby incorporated herein by
reference, and unless otherwise expressly specified herein, such provisions
shall apply as if fully set forth herein (references in this Section to an
"Article" or "Section" shall mean Articles or Sections of the Separation
Agreement, and, except as expressly set forth below, references within the
material incorporated herein by reference shall be references to the Separation
Agreement): Section 5.4 (relating to Agreement for Exchange of Information);
Section 5.9 (relating to Dispute Resolution); Section 5.11 (relating to No
Representation or Warranty); and Article V (relating to Covenants and Other
Matters).
Section 8.5 Governing Law. To the extent not preempted by applicable federal
law, including, without limitation, ERISA, the Code and applicable securities
laws, this Agreement shall be governed by, construed and interpreted in
accordance with the laws of the State of California, irrespective of the choice
of law principles of the State of California, as to all matters, including
matters of validity, construction, effect, performance and remedies.
Section 8.6 Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives and
successors, and nothing in this Agreement, express or implied, is intended to
confer upon any other Person any rights or remedies of any nature whatsoever
under or by reason of this Agreement. This Agreement may be enforced separately
by each member of the MRV Group and each member of the Optical Access Group.
Neither party may assign this Agreement or any rights or obligations hereunder,
without the prior written consent of the other party, and any such assignment
shall be void; provided, however, either party may assign this Agreement to a
successor entity in conjunction with such party's reincorporation.
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Section 8.7 Severability. If any term or other provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible and in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the fullest possible extent.
Section 8.8 Interpretation. The headings contained in this Agreement or any
Schedule hereto and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Any capitalized term used in any Schedule but not otherwise
defined therein shall have the meaning assigned to such term in this Agreement.
When a reference is made in this Agreement to an Article, Section or Schedule,
such reference shall be to an Article of, Section of, or Schedule to this
Agreement unless otherwise indicated.
Section 8.9 Amendment. The Board of Directors of Optical Access and MRV may
mutually agree to amend the provisions of this Agreement at any time or times,
for any reason, either prospectively or retroactively, to such extent and in
such manner as the Boards mutually deem advisable. Each Board may delegate its
amendment power, in whole or in part, to one or more Persons or committees as it
deems advisable. The Senior Vice President, Human Resources of MRV and the
functional equivalent of Optical Access have full power and authority to
mutually adopt an amendment to this Agreement (subject to each of their
authority to amend Plans). No change or amendment will be made to this
Agreement, except by an instrument in writing signed by authorized individuals.
Section 8.10 Termination. This Agreement may be terminated at any time prior to
the IPO Closing Date by and in the sole discretion of MRV without the approval
of Optical Access. This Agreement may be terminated at any time after the IPO
Closing Date and before the Effective Date by mutual consent of MRV and Optical
Access. In the event of termination pursuant to this Section, no party shall
have any liability of any kind to the other party.
Section 8.11 Conflict. In the event of any conflict between the provisions of
this Agreement and the Separation Agreement, any Ancillary Agreement, or Plan,
the provisions of this Agreement shall control.
Section 8.12 Counterparts. This Agreement, including the Schedules hereto and
the other documents referred to herein, may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized on the day and
year first above written.
MRV COMMUNICATIONS, INC.,
a Delaware corporation
By:
-----------------------------------
▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
OPTICAL ACCESS, INC.,
a Delaware corporation
By:
-----------------------------------
▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
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SCHEDULE 2.7
FOREIGN PLANS
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SCHEDULE 4.1(a)
OPTICAL ACCESS HEALTH AND WELFARE PLANS
Optical Access Health Plans:
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SCHEDULE 4.1(c)(i)
THIRD PARTY ASO
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SCHEDULE 4.1(c)(ii)
GROUP INSURANCE POLICIES
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SCHEDULE 4.1(c)(iii)
HMO AGREEMENT
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SCHEDULE 4.2(a)
MRV HEALTH AND WELFARE PLANS
MRV Health Plans:
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SCHEDULE 6.3
TRANSITIONAL STAFFING SERVICES
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