EX-99.3 4 ex993to13da109455007_073014.htm INDEMNIFICATION AGREEMENT, JEFFREY S. MCCREARY ex993to13da109455007_073014.htm
Exhibit 99.3
 
ENGAGED CAPITAL, LLC
610 Newport Center Drive, Suite 250
Newport Beach, California 92660
VOCE CAPITAL MANAGEMENT LLC
600 Montgomery Street, Suite 210
San Francisco, California 94111

 
July 30, 2014
 


Re:                           Oplink Communications, Inc.
 
Dear Mr. McCreary:

Thank you for agreeing to serve as a nominee for election to the Board of Directors of Oplink Communications, Inc. (the “Company”) in connection with the proxy solicitation that Engaged Capital, LLC and Voce Capital Management LLC, together with certain of their respective affiliates (collectively, the “Stockholder Group”), is considering undertaking to nominate and elect directors at the Company’s 2014 annual meeting of stockholders, or any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “Stockholder Group Solicitation”).  Your outstanding qualifications, we believe, will prove a valuable asset to the Company and all of its stockholders.  This letter (“Agreement”) will set forth the terms of our agreement.
 
The members of the Stockholder Group agree to jointly and severally indemnify and hold you harmless against any and all claims of any nature, whenever brought, arising from the Stockholder Group Solicitation and any related transactions, irrespective of the outcome; provided, however, that you will not be entitled to indemnification for claims arising from your gross negligence, willful misconduct, intentional and material violations of law, criminal actions or material breach of the terms of this agreement; provided further, that upon your becoming a director of the Company, this indemnification shall not apply to any claims made against you in your capacity as a director of the Company.  This indemnification will include any and all losses, liabilities, damages, demands, claims, suits, actions, judgments, or causes of action, assessments, costs and expenses, including, without limitation, interest, penalties, reasonable attorneys’ fees, and any and all reasonable costs and expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, any civil, criminal, administrative or arbitration action, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation asserted against, resulting, imposed upon, or incurred or suffered by you, directly or indirectly, as a result of or arising from the Stockholder Group Solicitation and any related transactions (each, a “Loss”).
 
In the event of a claim against you pursuant to the prior paragraph or the occurrence of a Loss, you shall give the Stockholder Group prompt written notice of such claim or Loss (provided that failure to promptly notify the Stockholder Group shall not relieve us from any liability which we may have on account of this Agreement, except to the extent we shall have been materially prejudiced by such failure).  Upon receipt of such written notice, the Stockholder Group will provide you with counsel to represent you.  Such counsel shall be reasonably acceptable to you.  In addition, you will be reimbursed promptly for all Losses suffered by you and as incurred as provided herein.  The Stockholder Group may not enter into any settlement of loss or claim without your consent unless such settlement includes a release of you from any and all liability in respect of such claim.
 
You hereby agree to keep confidential and not disclose to any party, without the consent of the Stockholder Group, any confidential, proprietary or non-public information (collectively, “Information”) of the Stockholder Group, its affiliates or members of its Schedule 13D group which you have heretofore obtained or may obtain in connection with your service as a nominee hereunder.  Notwithstanding the foregoing, Information shall not include any information that is publicly disclosed by the Stockholder Group, its affiliates or members of its Schedule 13D group or any information that you can demonstrate is now, or hereafter becomes, through no act or failure to act on your part, otherwise generally known to the public.


 
 

 

Notwithstanding the foregoing, if you are required by applicable law, rule, regulation or legal process to disclose any Information you may do so provided that you first promptly notify the Stockholder Group so that the Stockholder Group or any member thereof may seek a protective order or other appropriate remedy or, in the Stockholder Group’s sole discretion, waive compliance with the terms of this Agreement.  In the event that no such protective order or other remedy is obtained or the Stockholder Group does not waive compliance with the terms of this Agreement, you may consult with counsel at the cost of the Stockholder Group and you may furnish only that portion of the Information which you are advised by counsel is legally required to be so disclosed and you will request that the party(ies) receiving such Information maintain it as confidential.

All Information, all copies thereof, and any studies, notes, records, analysis, compilations or other documents prepared by you containing such Information, shall be and remain the property of the Stockholder Group and, upon the request of a representative of the Stockholder Group, all such information shall be returned or, at the Stockholder Group’s option, destroyed by you, with such destruction confirmed by you to the Stockholder Group in writing.

This letter agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of laws thereof.
 

 
*              *              *

 
 

 

 
If you agree to the foregoing terms, please sign below to indicate your acceptance.
 
   Very truly yours,
   
   
 
Engaged Capital Master Feeder I, LP
     
 
By:
Engaged Capital, LLC
General Partner
     
 
By:
/s/ Glenn W. Welling
   
Name:
Glenn W. Welling
   
Title:
Managing Member and Chief Investment Officer

 
Engaged Capital Master Feeder II, LP
   
 
By:
Engaged Capital, LLC
General Partner
   
 
By:
/s/ Glenn W. Welling
   
Name:
Glenn W. Welling
   
Title:
Managing Member and Chief Investment Officer

 
Engaged Capital I, LP
     
 
By:
Engaged Capital, LLC
General Partner
   
 
By:
/s/ Glenn W. Welling
   
Name:
Glenn W. Welling
   
Title:
Managing Member and Chief Investment Officer

 
Engaged Capital I Offshore, Ltd.
     
 
By:
/s/ Glenn W. Welling
   
Name:
Glenn W. Welling
   
Title:
Director

 
Engaged Capital II, LP
     
 
By:
Engaged Capital, LLC
General Partner
     
 
By:
/s/ Glenn W. Welling
   
Name:
Glenn W. Welling
   
Title:
Managing Member and Chief Investment Officer
 
 
 

 
 
 
 
Engaged Capital, LLC
     
 
By:
/s/ Glenn W. Welling
   
Name:
Glenn W. Welling
   
Title:
Managing Member and Chief Investment Officer

 
Engaged Capital Holdings, LLC
   
 
By:
/s/ Glenn W. Welling
   
Name:
Glenn W. Welling
   
Title:
Sole Member

 
/s/ Glenn W. Welling
 
Glenn W. Welling



 
Voce Capital Management LLC
     
 
By:
Voce Capital LLC
Managing Member
     
 
By:
/s/ J. Daniel Plants
   
Name:
J. Daniel Plants
   
Title:
Managing Member

 
Voce Capital LLC
     
 
By:
/s/ J. Daniel Plants
   
Name:
J. Daniel Plants
   
Title:
Managing Member

 
/s/ J. Daniel Plants
 
J. Daniel Plants




ACCEPTED AND AGREED:
 
/s/ Jeffrey S. McCreary
JEFFREY S. MCCREARY