Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") effective as of May 19, 2006, by
and between Terabeam, Inc., a Delaware corporation (the "Company") and Xxxxxx
Xxxxxxx (the "Executive").
WHEREAS, the Company considers it essential to its best interests and the
best interests of its stockholders for the Company to employ Executive and
Executive is willing to accept employment on the terms hereinafter set forth in
this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment; Executive Representation.
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a. Employment Term. Executive's term of employment under this Agreement
shall commence on the date hereof and, subject to the terms hereof, Executive
and the Company agree and acknowledge that Executive's employment with the
Company constitutes "at-will" employment and that this Agreement may be
terminated at any time by the Company or Executive, subject to the terms of
Section 7 of this Agreement.
b. Executive Representation. Executive hereby represents to the Company
that the execution and delivery of this Agreement by Executive and the Company
and the performance by Executive of the Executive's duties hereunder shall not
constitute a breach of, or otherwise contravene, the terms of any statute, law,
regulation, or of any employment agreement or other agreement or policy to which
Executive is a party or otherwise bound.
2. Position.
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a. While employed hereunder, Executive shall serve as the President and
Chief Operating Officer of the Company and in the same position with the
Company's subsidiary Proxim Wireless Corporation. In such position, Executive
shall have such duties and authority as shall be determined from time to time by
Chief Executive Officer ("CEO").
b. While employed hereunder, Executive will devote Executive's full
business time and best efforts to the performance of Executive's duties
hereunder and will not engage in any other business, profession or occupation
for compensation or otherwise which would conflict with the rendering of such
services either directly or indirectly, without the prior written consent of the
CEO.
3. Base Salary. While employed hereunder, the Company shall pay Executive
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a base salary (the "Base Salary") at the annual rate of $330,000, payable in
regular installments in accordance with the Company's usual payment practices.
Executive shall be
entitled to such increases in Executive's Base Salary, if any, as may be
determined from time to time in the sole discretion of the board of directors of
the Company (the "Board"), as applicable.
4. Annual Bonus. With respect to each calendar year while employed
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hereunder, Executive shall be eligible to earn an annual bonus award (an "Annual
Bonus") pursuant to an annual incentive plan to be established by the Board no
later than the beginning of the annual period to which the bonus applies, after
consultation and input from Executive; provided, however, that Executive's
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target Annual Bonus opportunity shall not be less than 50% of Executive's Base
Salary (the "Target Bonus").
5. Employee Benefits. The Company shall provide Executive during the term
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of his employment hereunder with coverage under all employee pension and welfare
benefit programs, plans and practices in accordance with the terms thereof,
which the Company generally makes available to its senior executives (other than
the CEO). Executive shall be entitled to five weeks of paid vacation and such
number of days of sick leave as established under the Company's policies as in
effect from time to time, which shall be taken at such times as are consistent
with Executive's responsibilities hereunder. In addition, Executive shall be
entitled to the perquisites and other fringe benefits currently made available
to senior executives of the Company (other than the CEO), commensurate with
Executive's position with the Company.
6. Business Expenses. Executive is authorized to incur reasonable expenses
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in carrying out his duties and responsibilities under this Agreement, including,
without limitation, expenses for travel and similar items related to such duties
and responsibilities. The Company will reimburse Executive for all such expenses
upon presentation by Executive from time to time of appropriately itemized
accounts of such expenditures, provided such expenditures are consistent with
the Company's policy.
7. Termination. The Executive's employment hereunder may be terminated by
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either party at any time and for any reason or no reason; provided that
Executive will be required to give the Company at least 30 days advance written
notice of any resignation of Executive's employment (unless the Company waives
its right to receive such 30-day notice). Notwithstanding any other provision of
this Agreement, the provisions of this Section 7 shall exclusively govern
Executive's rights upon termination of employment with the Company and its
affiliates.
a. By the Company For Cause; By the Executive Without Good Reason.
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(i) The Executive's employment hereunder may be terminated by the
Company for Cause (as defined below) at any time or by Executive without Good
Reason.
(ii) For purposes of this Agreement, "Cause" shall mean (i)
Executive's continued failure to properly perform Executive's duties hereunder
(other than as a result of total or partial incapacity due to physical or mental
illness) as reasonably determined
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by the CEO following notice by the Company to the Executive of such failure and
a reasonable opportunity for Executive to cure, (ii) dishonesty in the
performance of Executive's duties hereunder, (iii) an act or acts on Executive's
part constituting (x) a felony under the laws of the United States or any state
thereof or (y) a misdemeanor involving moral turpitude, (iv) Executive's willful
malfeasance or willful misconduct in connection with Executive's duties
hereunder or any act or omission which is materially injurious to the financial
condition or business reputation of the Company or any of its subsidiaries or
affiliates, or (v) Executive's breach of the provisions of Section 8 of this
Agreement.
(iii) If Executive's employment is terminated by the Company for
Cause or by Executive without Good Reason, Executive shall be entitled to
receive, reduced by any amounts owed to the Company by Executive, the amounts
described in the following clauses (A) through (C) set forth below:
(A) the Base Salary through the date of termination;
(B) reimbursement for any unreimbursed business expenses properly
incurred by Executive in accordance with Company policy prior to the date of
Executive's termination; and
(C) such employee benefits under the employee benefit plans of
the Company, including accrued paid vacation, which have accrued for services
already performed as of the date of termination of Executive's employment (the
amounts described in clauses (A) through (C) hereof being referred to as the
"Accrued Rights").
(iv) Following such termination of Executive's employment by the
Company for Cause or by Executive without Good Reason, except as set forth in
this Section 7(a), Executive shall have no further rights to any compensation or
any other benefits under this Agreement.
b. Disability or Death.
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(i) The Executive's employment hereunder shall terminate upon
Executive's death or if Executive becomes physically or mentally incapacitated
and is therefore unable to perform Executive's duties for a period in excess of
one hundred twenty (120) consecutive days or for more than one hundred eighty
(180) days in any consecutive twelve (12) month period (such incapacity is
hereinafter referred to as "Disability"). Any question as to the existence of
the physical or mental incapacitation of Executive as to which Executive or his
representative and the Company cannot agree shall be determined in writing by a
qualified independent physician mutually acceptable to Executive and the
Company. If Executive and the Company cannot agree as to a qualified independent
physician, each shall appoint such a physician and those two physicians shall
select a third who shall make such determination in writing. The determination
of Disability made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement, and all costs incurred by
Executive
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and/or the Company that are related to such determination shall be paid by the
party incurring such costs.
(ii) Upon termination of Executive's employment hereunder for either
Disability or death, Executive or Executive's estate (as the case may be) shall
be entitled to receive:
(A) the Accrued Rights; and
(B) a pro rata portion of any Annual Bonus that the Executive
would have been entitled to receive pursuant to Section 4 hereof in such year
based upon the percentage of the calendar year that shall have elapsed through
the date of Executive's termination of employment, payable when such Annual
Bonus would have otherwise been payable had the Executive's employment not
terminated.
(iii) Following Executive's termination of employment due to death
or Disability, except as set forth in this Section 7(b), Executive shall have no
further rights to any compensation or any other benefits under this Agreement.
c. By the Company Without Cause or Resignation by Executive for Good
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Reason.
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(i) The Executive's employment hereunder may be terminated by the
Company without Cause or by Executive's resignation for Good Reason.
(ii) For purposes of this Agreement, "Good Reason" shall mean:
(v) a failure to nominate Executive to the Board as part of the
Board's slate of nominees for consideration at any meeting of stockholders of
the Company at which directors will be elected commencing in 2007; or
(w) the reduction by the Company of Executive's Base Salary
(other than as a result of a general salary reduction affecting all Company
employees); or
(x) any material and adverse reduction in Executive's duties and
responsibilities made without Executive's written consent; or
(y) relocation of Executive's principal workplace more than fifty
(50) miles from Executive's principal workplace as of the date hereof made
without Executive's written consent; or
(z) a material breach by the Company of the provisions of this
Agreement which remains uncured for thirty days after notice from Executive.
In addition, "Good Reason" shall also be deemed to have occurred in the event
the Company
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fails to obtain from any successor to the Company an agreement to assume and
perform this Agreement, as contemplated by Section 10(e) hereof. Notwithstanding
the foregoing, none of the events described in clauses (x), (y) or (z) of this
Section 7(c)(ii) shall constitute Good Reason unless Executive shall have
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notified the Company in writing describing the events which constitute Good
Reason and then only if the Company shall have failed to cure such event within
thirty (30) days after the Company's receipt of such written notice.
(iii) If Executive's employment is terminated by the Company without
Cause (other than by reason of death or Disability) or if Executive resigns for
Good Reason, then upon the execution of an effective general release of claims
(but not rights which Executive may have as a shareholder or as a participant in
any deferred compensation arrangements established by the Company) in a form
satisfactory to the Company, Executive shall be entitled to receive:
(A) the Accrued Rights; and
(B) subject to Executive's continued compliance with the
applicable provisions of Section 8, (x) continued payment of the Base Salary
after the date of termination (I) for the first year of Executive's employment
with the Company, six (6) months or (II) after the one year anniversary of
Executive's employment with the Company, twelve (12) months (such number of
months being the "Severance Period"), and (y) payment of the Target Bonus
(prorated by multiplying the Target Bonus by a fraction, the numerator of which
shall be the number of months in the Severance Period and the denominator of
which shall be 12) in respect of the year in which such date of termination
occurs, payable at such time as the Annual Bonus would otherwise be payable.
Such Target Bonus will only be paid if the criteria for payment of a Target
Bonus under the annual incentive plan in effect as of the date of termination
are met; provided, that the aggregate amount described in this clause (B) shall
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be reduced by the present value of any other cash severance or termination
benefits payable to Executive under any other plans, programs or arrangements of
the Company or its affiliates; and
(C) acceleration of that portion, if any, of any outstanding
option to purchase shares of common stock of the Company granted to Executive
pursuant to the Company's stock plans (the "Option") that is otherwise
unexercisable as of the date of termination, which would have otherwise become
exercisable at any time(s) during the Severance Period, with all Options
continuing to be exercisable by Executive during the full term of the Severance
Period (but in any event for no shorter period than provided for under the terms
of the Option); and
(D) subject to Executive's continued compliance with the
applicable provisions of Section 8, continued coverage during the Severance
Period under the Company's medical insurance plans in accordance with the terms
thereof at the same cost to Executive as was provided to Executive immediately
prior to the date of termination.
Executive shall not be required to mitigate the amount of any payments or
benefits provided for pursuant to this Section 7(c)(iii) by seeking other
employment.
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(iv) Notwithstanding anything set forth in this Section 7(c) to the
contrary, in the event that, upon or within twelve (12) months following or
three (3) months prior to the occurrence of a Change of Control, either (x)
Executive's employment is terminated by the Company without Cause (other than by
reason of Executive's death or Disability) or (y) Executive resigns for Good
Reason, the payments and benefits set forth in Section 7(c)(iii) above shall be
modified as follows:
(A) in lieu of the continued payment of Base Salary and payment
of the Target otherwise payable pursuant to Section 7(c)(iii)(B), Executive
shall be paid, in a lump sum no later than ten (10) business days following the
termination of Executive's employment, an amount equal to the sum of the Base
Salary and the Target Bonus (without consideration of whether the criteria to
pay such Target Bonus have been met); provided, however, that such payments
shall still be offset by any other cash severance or termination benefits
payable in accordance with any other such plans, programs or arrangements;
(B) in lieu of the acceleration of exercisability of the Option
provided for in Section 7(c)(iii)(C), one hundred percent (100%) of any portion
of the Option that is otherwise unexercisable as of the date of termination
shall become immediately exercisable, and all Options shall continue to be
exercisable by Executive during the full term of the Severance Period; and
(C) Executive's right to the Base Salary and the Target Bonus
described in Section 7(c)(iv)(A) (collectively, the "Advanced Payments") and to
any income to be realized (but not necessarily recognized for tax purposes) on
account of the Option acceleration described in Section 7(c)(iv)(B) (the "Option
Spread"), or to retain the Advanced Payments or Option Spread, as the case may
be, is expressly contingent upon Executive's compliance with each and every
provision set forth in Section 8. In the event that Executive engages in conduct
that contravenes the terms of Section 8, the Option described in Section
7(c)(iv)(B) shall immediately terminate (and shall no longer be exercisable) and
Executive shall not be entitled to any of the benefits described in Section
7(c)(iv). In the event that Executive engages in conduct that contravenes the
terms of Section 8 subsequent to the date that he has been paid the Advanced
Payments, or subsequent to the date that he has realized Option Spread, (I) the
Option described in Section 7(c)(iv)(B) shall immediately terminate (and shall
no longer be exercisable), and (II) Executive shall promptly return a portion of
the Advanced Payments and a portion of the Option Spread, as the case may be.
The amount of Advanced Payments and Option Spread to be returned to the Company
shall be determined by multiplying the Advanced Payments and the Option Spread
by the "Return Fraction" (defined in the following sentence). The "Return
Fraction" shall be a fraction having a numerator equal to a number of
consecutive calendar months beginning in the month in which Executive first
engaged in conduct in contravention of the terms of Section 8 and including each
and every month thereafter during which the offending behavior continues through
the end of the one (1) year period following the date Executive ceases to be
employed by the Company and a denominator equal to twelve (12). The required
return of funds described in this Section 7(c)(iv)(C) shall not constitute the
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Company's exclusive remedy if Executive engages in conduct that contravenes the
terms of Section 8.
(D) Executive shall not be required to mitigate the amount of any
payments or benefits provided for pursuant to this Section 7(c)(iv) by seeking
other employment.
(v) For purposes of Section 7(c)(iv), a "Change of Control" shall
mean the occurrence of any of the following events:
(A) any Person (other than any Person holding securities
representing 10% or more of the combined voting power of the Company's
outstanding securities on the date hereof, the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, or
any company owned, directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of stock of the Company),
becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing 50% or more of the combined voting power of the Company's
then-outstanding securities;
(B) during any period of twenty-four consecutive months (not
including any period prior to the date hereof), individuals who at the beginning
of such period constitute the Board, and any new director (other than (I) a
director nominated by a Person who has entered into an agreement with the
Company to effect a transaction described in Sections 7(c)(v)(A), (C), or (D)
hereof or (II) a director nominated by any Person (including the Company) who
publicly announces an intention to take or to consider taking actions
(including, but not limited to, an actual or threatened proxy contest) which if
consummated would constitute a Change in Control) whose election by the board of
directors of the Company or nomination by the board of directors of the Company
for election by the Company's shareholders was approved by a vote of at least
two-thirds (2/3rd) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute at least
a majority thereof;
(C) the consummation of any transaction or series of transactions
under which the Company is merged or consolidated with any other company, other
than a merger or consolidation which would result in the shareholders of the
Company immediately prior thereto continuing to own (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or its parent) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity (or its parent) outstanding
immediately after such merger or consolidation; or
(D) the complete liquidation of the Company or the sale or
disposition by the Company of all or substantially all of the Company's assets,
other than a liquidation of the Company into a wholly-owned subsidiary.
For purposes of this Section 7(c)(v), the terms "Person" and "Beneficial Owner"
shall each have
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the same meaning as such terms are defined in Section 13(d) and Rule 13d-3,
respectively, of the Securities Exchange Act of 1934, as amended, or any
successor thereto, and the term Affiliate" shall mean any entity directly or
indirectly controlling, controlled by, or under common control with, the Company
or any other entity designated by the board of directors of the Company in which
the Company has an interest.
(vi) If all or any portion of the payments or benefits provided
under Section 7(c)(iv), either alone or together with other payments and
benefits which Executive receives or is then entitled to receive from the
Company, would constitute a payment described in Section 280G(b)(2) (or its
successors) of the Internal Revenue Code, as amended from time to time (the
"Code"), such payments and benefits provided to Executive thereunder shall be
reduced to the extent necessary so that no portion thereof shall be subject to
the excise tax imposed by Section 4999 of the Code; but only if, by reason of
such reduction, the net after-tax benefit to Executive with respect to such
payments and benefits shall exceed such net after-tax benefit if no such
reduction were made. For purposes of Section 7(c)(iv), "net after-tax benefit"
shall mean the sum of (I) the total amounts payable to Executive hereunder, plus
(II) all other payments and benefits which the Executive receives or is entitled
to receive from the Company as a result of any such termination of employment
set forth in Section 7(c)(iv) that would constitute a payment described in
Section 280G(b)(2) of the Code, less (III) the amount of federal income taxes
payable with respect to the foregoing calculated at the maximum marginal income
tax rate for each year in which the foregoing shall be paid to Executive (based
upon the rate in effect for such year as set forth in the Code at the time of
termination of Executive's employment), less (IV) the amount of excise taxes
imposed with respect to the payments and benefits described in (I) and (II)
above by Section 4999 of the Code. The foregoing calculations shall be made, at
the Company's expense, by a nationally recognized accounting firm selected by
the Company. The determination of such firm shall be conclusive and binding on
all parties.
(vii) Following Executive's termination of employment by the Company
without Cause (other than by reason of Executive's death or Disability) or by
Executive's resignation for Good Reason, except as set forth in this Section
7(c), Executive shall have no further rights to any compensation or any other
benefits under this Agreement.
d. Notice of Termination. Any purported termination of employment by
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the Company or by Executive (other than due to Executive's death) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 10(g) hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
8. Nondisclosure of Confidential Information; Non-Competition.
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(a) At any time during or after Executive's employment with the Company,
Executive shall not, without the prior written consent of the Company, use,
divulge, disclose or make accessible to any other person, firm, partnership,
corporation or other entity any
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Confidential Information (as hereinafter defined) pertaining to the business of
the Company or any of its subsidiaries, except (i) while employed by the
Company, in the business of and for the benefit of the Company, or (ii) when
required to do so by a court of competent jurisdiction, by any governmental
agency having supervisory authority over the business of the Company, or by any
administrative body or legislative body (including a committee thereof) with
jurisdiction to order Executive to divulge, disclose or make accessible such
information. For purposes of this Section 8(a), "Confidential Information" shall
mean information (whether or not in written form) which relates to the Company
or any of its affiliates, or any of its businesses or products (including,
without limitation, its financial data, strategic business plans, and other
proprietary information) or to this Agreement, and which is not known to the
public generally (excluding public knowledge which occurs as a result of
Executive's breach of this covenant or the wrongful acts of others who were
under confidentiality obligations as to the item or items involved), except in
the conduct of the business of the Company, as in existence as of the date of
Executive's termination of employment.
(b) As President and Chief Operating Officer, Executive will acquire
knowledge of Confidential Information and trade secrets. Executive acknowledges
that the Confidential Information and trade secrets which the Company has
provided and will provide to him could play a significant role were he to
directly or indirectly be engaged in any business in Competition (as hereinafter
defined) with the Company or its subsidiaries. During the period of his
employment hereunder and for one year thereafter, Executive agrees that, without
the prior written consent of the Company, (A) he will not, directly or
indirectly, either as principal, manager, agent, consultant, officer,
stockholder, partner, investor, lender or employee or in any other capacity,
carry on, be engaged in or have any financial interest in (other than an
ownership position of less than 5 percent in any company whose shares are
publicly traded) any business which is in Competition (as hereinafter defined)
with the business of the Company or its subsidiaries as the business was
conducted at any time during Executive's employment and (B) he shall not, on his
own behalf or on behalf of any person, firm or company, directly or indirectly,
solicit or offer employment to any person who has been employed by the Company
or its subsidiaries at any time during the 12 months immediately preceding such
solicitation.
(c) For purposes of this Section 8, a business shall be deemed to be in
"Competition" with the Company or its subsidiaries if it is engaged in or has
taken concrete steps toward engaging in the business of research and
development, designing, manufacturing, marketing, distributing, or servicing or
selling microwave or millimeter wave systems, radios, products and equipment (or
components of any of the foregoing), whether in existence or in development,
relating to microwave or millimeter wave communications (including unlicensed
spread spectrum radio, licensed radio, wireless ethernet bridge, and fixed,
portable, and mobile wireless (e.g., Wi-Fi, WiMax, wireless local loop, mesh,
point-to-point, point-to-multipoint)), as carried on by the Company or its
affiliates at any time during Executive's employment, in all cities, counties,
states and countries in which the business of the Company or its affiliates is
then being conducted or its products are being offered, sold, used, serviced, or
maintained.
(d) The results and proceeds of Executive's services hereunder, including,
without limitation, any works of authorship resulting from Executive's services
during
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Executive's employment with the Company and/or any of the Company's affiliates
and any works in progress, will be works-made-for hire and the Company will be
deemed the sole owner throughout the universe of any and all rights of
whatsoever nature therein, whether or not now or hereafter known, existing,
contemplated, recognized or developed, with the right to use the same in
perpetuity in any manner the Company determines in its sole discretion without
any further payment to Executive whatsoever. If, for any reason, any of such
results and proceeds will not legally be a work-for-hire and/or there are any
rights which do not accrue to the Company under the preceding sentence, then
Executive hereby irrevocably assigns and agrees to assign any and all of
Executive's right, title and interest thereto, including, without limitation,
any and all copyrights, patents, trade secrets, trademarks and/or other rights
of whatsoever nature therein, whether or not now or hereafter known, existing,
contemplated, recognized or developed, to the Company, and the Company will have
the right to use the same in perpetuity throughout the universe in any manner
the Company determines without any further payment to Executive whatsoever.
Executive will, from time to time as may be requested by the Company, (i) during
the term of Executive's employment without further consideration, and (ii)
thereafter at Executive's then current hourly rate, do any and all things which
the Company may deem useful or desirable to establish or document the Company's
exclusive ownership of any and all rights in any such results and proceeds,
including, without limitation, the execution of appropriate copyright and/or
patent applications or assignments. To the extent Executive has any rights in
the results and proceeds of Executive's services that cannot be assigned in the
manner described above, Executive unconditionally and irrevocably waives the
enforcement of such rights. This subsection is subject to and will not be deemed
to limit, restrict, or constitute any waiver by the Company of any rights of
ownership to which the Company may be entitled by operation of law by virtue of
the Company being Executive's employer. This Section does not apply to an
invention that qualifies as a nonassignable invention under Section 2870 of the
California Labor Code, which applies to any invention for which no equipment,
supplies, facilities or Confidential Information of the Company or its
subsidiaries was used, which does not (i) relate to the business of the Company;
(ii) relate to the Company's actual or demonstrable anticipated research or
development or (iii) result from any work performed by Executive for the
Company. This confirms that Executive has been notified of his rights under
Section 2870 of the California Labor Code.
9. Specific Performance. Executive and the Company agree that the
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covenants in Section 8 are reasonable covenants under the circumstances.
Executive agrees that any breach of the covenants contained in Section 8 would
irreparably injure the Company. Accordingly, Executive agrees the Company's
remedies at law for a breach or threatened breach of any of the provisions of
Section 8 would be inadequate and, in recognition of this fact, Executive agrees
that, in the event of such a breach or threatened breach, the Company may,
without posting any bond, in addition to pursuing any other remedies it may have
in law or in equity, cease making any payments otherwise required by this
Agreement and obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available against Executive from any court
having jurisdiction over the matter, restraining any threatened or further
violation of this Agreement by Executive.
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10. Miscellaneous.
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a. Governing Law. To the maximum extent permitted by applicable law,
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this Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the entire
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understanding of the parties with respect to the employment of Executive by the
Company. There are no restrictions, agreements, promises, warranties, covenants
or undertakings between the parties with respect to the subject matter herein
other than those expressly set forth herein. This Agreement may not be altered,
modified, or amended except by written instrument signed by the parties hereto.
This Agreement supersedes all prior agreements and understandings (including
verbal agreements) between Executive and the Company and/or its affiliates
regarding the terms and conditions of Executive's employment with the Company
and/or its affiliates.
c. No Waiver. The failure of a party to insist upon strict adherence to
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any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
d. Severability. Whenever possible, each provision of this Agreement
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will be interpreted in a manner to be effective and valid. If any of the
covenants set forth in Section 8 of this Agreement are held to be unreasonable,
arbitrary, or against public policy, such covenants will be considered divisible
with respect to scope, time, and geographic area and, in such lesser scope,
time, and geographic area, will be effective, binding, and enforceable against
Executive to the maximum extent permitted by applicable law. Any provision of
this Agreement which is determined to be prohibited, unenforceable, or not
authorized in any jurisdiction by a competent court of that jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability, or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability, or legality of such
provision in any other jurisdiction.
e. Assignment. This Agreement shall not be assignable by Executive.
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This Agreement may be assigned by the Company to a company that is a successor
in interest to substantially all of the business operations of the Company. Such
assignment shall become effective when the Company notifies the Executive of
such assignment or at such later date as may be specified in such notice. Upon
such assignment, the rights and obligations of the Company hereunder shall
become solely the rights and obligations of such successor company, provided
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that any assignee expressly assumes the obligations, rights and privileges of
this Agreement.
f. Successors; Binding Agreement. This Agreement shall inure to the
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benefit of and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributes, devises and legatees.
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g. Notice. For the purpose of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
If to the Company:
Terabeam, Inc.
0000 X'Xxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Terabeam, Inc.
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
If to Executive:
To the most recent address of Executive set forth in the personnel records
of the Company.
h. Withholding Taxes. The Company may withhold from any amounts payable
-----------------
under this Agreement such Federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
i. Counterparts. This Agreement may be signed in counterparts, each of
------------
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. A facsimile or copy of a signature is
valid as an original.
[Signatures on next page]
12
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
TERABEAM, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxx Xxxxxxx
------------------
Xxxxxx Xxxxxxx
13
