Exhibit 10.37
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of February 23,
2000 by and between Western Multiplex Corporation, a Delaware Company (the
"Company") and Xxxxxxx Xxxxx (the "Executive").
WHEREAS, the Company considers it essential to its best interests
and the best interests of its stockholders to xxxxxx the continued employment of
Executive by the Company during the term of this Agreement and Executive is
willing to accept and continue Executive's 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.
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; provided,
however, that any termination of employment by the Company without Cause, as
defined below. (other than for death or Disability, as defined below) or by
Executive without Good Reason, as defined below, may only be made upon 90 days'
prior written notice to the other party to 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 employment agreement or other agreement or policy to which Executive is a
party or otherwise bound.
2. Position.
a. While employed hereunder, Executive shall serve as the
Company's Director of Engineering. In such position, Executive shall have such
duties and authority as shall be determined from time to time by the chief
operating officer of the Company (or his designee) (the "COO").
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 rendition of such services either directly or indirectly, without the prior
written consent of the COO; provided that nothing herein shall preclude
Executive from continuing to serve on the board of directors or trustees of any
business corporation or any
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charitable organization on which she currently serves and which is identified on
Exhibit A hereto or, subject to the prior approval of the COO, from accepting
appointment to any additional directorships or trusteeships, provided in each
case, and in the aggregate, that such activities do not interfere with the
performance of Executive's duties hereunder or conflict with Section 8.
3. Base Salary. While employed hereunder, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of $140,400,
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, but in accordance with the Company's established procedures for
reviewing salaries of similarly situated executives.
4. Annual Bonus. With respect to each calendar year while
employed 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. If the Board discontinues this annual incentive plan or significantly
reduces the remuneration Executive is able to receive under this annual
incentive plan, then Executive is entitled to participate in all other incentive
and/or benefit plans, in accordance with the terms and conditions of such plans,
that the Company makes available to similarly situated executives.
5. Employee Benefits. The Company shall provide Executive during
the term of her 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.
Executive shall also be entitled to such number of paid vacation and sick leave
in each calendar year 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.
6. Business Expenses. Executive is authorized to incur reasonable
expenses in carrying out her 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 and approved (consistent with the Company's policy) accounts of such
expenditures.
7. Termination. The Executive's employment hereunder may be
terminated by either party at any time and for any reason; provided that the
Company will be required to provide Executive with at least 90 days' advance
written notice of any termination of Executive's employment without Cause (other
than termination due to death or Disability, as defined below) and Executive
will be required to give the Company at least 90 days' advance written notice of
any resignation of Executive's employment without Good Reason, as defined below.
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.
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a. By the Company For Cause or by Executive Without Good
Reason.
(i) The Executive's employment hereunder may be terminated
by the Company for Cause or by Executive without Good Reason; provided, however,
that Executive must provide the Company with 90 days' advance written notice
prior to her resignation. The Company shall have the option, in its complete
discretion, to make termination of the Executive's employment effective at any
time prior to the end of the 90 days' notice period, provided the Company pays
Executive all compensation due and owing through the last day actually worked,
plus all compensation (including base salary, benefits and annual bonus) the
Executive would have received had she remained an employee of the Company during
the 90-day notice period.
(ii) For purposes of this Agreement, "Cause" shall mean
(v) the Executive's willful and continued failure to perform her duties with
respect to the Company or its subsidiaries after thirty (30) days' written
demand by her superior for substantial performance is made or delivered, (w)
willful misconduct by the Executive involving dishonesty or breach of trust in
connection with the Executive's employment, (x) indictment for any felony or
misdemeanor involving moral turpitude, (y) any willful and material breach of
the Executive's restrictive covenants as provided in Section 8 of this
Agreement, or (z) willful and material breach of any other term of this
Agreement; provided, however, that if any such Cause is reasonably curable, the
Company shall not terminate Executive's employment hereunder unless the Company
first gives notice of its intention to terminate and the grounds of such
termination, and the Executive has not, within thirty (30) days following
receipt of this notice, cured such Cause.
An act or a failure to act will not be considered willful
if committed in good faith and if Executive reasonably believed that the act or
omission was in the Company's best interests.
(iii) If Executive's employment is terminated by the
Company for Cause or by Executive without Good Reason, Executive shall be
entitled to receive:
(A) the Base Salary through the date of termination;
(B) any Annual Bonus earned but unpaid as of the date of
termination for any previously completed calendar year;
(C) reimbursement for any unreimbursed business expenses
properly incurred by Executive in accordance with Company policy
prior to the date of Executive's termination; and
(D) such Employee Benefits, if any, as to which Executive
may be entitled under the employee benefit plans of the Company
(the amounts described in clauses (A) through (D) hereof being
referred to as the "Accrued Rights").
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Following such termination of Executive's employment by the
Company for Cause, 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.
(i) The Executive's employment hereunder shall terminate
upon Executive's death or if Executive becomes physically or mentally
incapacitated and is therefore unable for a period of six (6) consecutive months
or for an aggregate of nine (9) months in any twenty-four (24) consecutive month
period to perform Executive's duties (such incapacity is hereinafter referred to
as "Disability"). Any question as to the existence of the Disability of
Executive as to which Executive 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.
(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.
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 Reason.
(i) Executive's employment hereunder may be terminated by
the Company without Cause or by Executive for Good Reason; provided, however,
that the Company must provide Executive with 90 days' advance written notice if
it terminates Executive's employment without Cause. The Company shall have the
option, in its complete discretion, to make termination of the Executive's
employment effective at any time prior to the end of the 90 days' notice period,
provided the Company pays Executive all compensation due and owing through the
last day actually worked, plus all compensation (including base salary, benefits
and annual bonus) the Executive would have received had she remained an employee
of the Company during the 90-day notice period.
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(ii) For purposes of this Agreement, "Good Reason" shall
mean:
(w) a reduction in Executive's then base salary (other
than any general salary reduction affecting at least the majority of salaried
employees of the Company), (x) a material and adverse reduction in Executive's
then duties and responsibilities, (y) a transfer of Executive's primary
workplace by more than fifty (50) miles from the current workplace, or (z) the
failure of the Company to obtain the assumption of this Agreement by any
successors contemplated in Section 10(e), below.
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 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, Executive shall be entitled to receive:
(A) the Accrued Rights; and
(B) subject to Executive's continued compliance with the
provisions of Section 8, Executive shall be entitled to the
following for a period of twelve (12) months after the date of
such termination (the "Continuation Period"): (x) continued
payment of the Executive's then current Base Salary, in
accordance with the Company's usual payment practices, plus (y)
an amount equal to the Executive's Annual Bonus paid or payable
in respect to the calendar year prior to the year in which such
termination occurs, which amount shall be paid in equal
installments not less frequently than monthly; provided that the
aggregate amount described in subclauses (x) and (y) of this
clause (B) shall be reduced by the present value of any other
cash severance or termination benefits payable to Executive under
any plans, programs or arrangements of the Company or its
affiliate other than those set forth in this Agreement and (z)
continued vesting of stock options granted to Executive under the
Company's stock incentive plans, including the 1999 Stock
Incentive Plan prior to her termination and continued vesting of
stock purchased by Executive through the Company's Assisted
Purchase Shares Program prior to her termination; provided that
Executive shall not be permitted to exercise any vested stock
options after the thirty (30) day period following the end of the
Continuation Period; and
(C) continued coverage under any employee medical,
disability and life insurance plans in accordance with the
respective terms thereof for a period ending on the earlier to
occur of (i) the end of the Continuation Period and (ii) the date
on which the Executive becomes covered under comparable benefit
plans of a new employer.
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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 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 11(h) 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.
e. Change in Control Arrangements. In the event that
Executive is either terminated by the Company, other than for a reason set forth
in Section 7(a)(ii), or resigns for Good Reason within twelve (12) months of a
change-in-control, then Executive is entitled to receive all of the compensation
and benefits as set forth in Section 7(c)(iii). For purposes hereof, "Change in
Control" shall have the same meaning as set forth in the 1999 Company Stock
Incentive Plan.
8. Nondisclosure of Confidential Information; Non-Competition.
(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 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 non-public information concerning the
financial data, strategic business plans, and other non-public, proprietary and
confidential information of the Company, its subsidiaries, Ripplewood Holdings
L.L.C. or their respective affiliates as in existence as of the date of
Executive's termination of employment that, in any case, is not otherwise
available to the public (other than by Executive's breach of the terms hereof).
(b) As Director of Engineering, 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 her could play a significant role were she to be directly
engaged in any business in Competition with the Company or its subsidiaries.
During the period of her employment hereunder and for one year thereafter,
Executive agrees that, without the prior written consent of the Company, (A) she
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 existing business of the Company or its
subsidiaries and (B) she shall not, on her own
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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 to the extent that Executive would use or inevitably use
Confidential Information or trade secrets or that would otherwise constitute
unfair competition.
(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 primarily
engaged in or has taken concrete steps toward engaging in the business of
research and development, designing, manufacturing, marketing, distributing,
servicing or selling microwave radios (including unlicensed spread spectrum
radio, licensed microwave radio, wireless ethernet bridge and fixed wireless
(e.g., wireless local loop, point to point, point to multipoint)), as carried on
by the Company as of the date of Executive's termination of employment, in all
cities, counties, states and any states or principalities of any countries in
which the business of the Company is then being conducted or its products are
being sold.
(d) The results and proceeds of Executive's services hereunder,
including, without limitation, any works of authorship resulting from
Executive's services during 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 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
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work performed by Executive for the Company. This confirms that Executive has
been notified of her rights under Section 2870 of the California Labor Code.
(e) Executive and the Company agree that this covenant not to
compete is a reasonable covenant under the circumstances, and further agree that
if in the opinion of any court of competent jurisdiction such restraint is not
reasonable in any respect, such court shall have the right, power and authority
to excise or modify such provision or provisions of this covenant as to the
court shall appear not reasonable and to enforce the remainder of the covenant
as so amended. Executive agrees that any breach of the covenants contained in
this Section 8 would irreparably injure the Company. Accordingly, Executive
agrees that the Company may, 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 an injunction against Executive from any court having
jurisdiction over the matter restraining any further violation of this Agreement
by Executive.
9. Specific Performance. Executive acknowledges and agrees that
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, in
addition to any remedies at law, the Company, without posting any bond, shall be
entitled to cease making any payments or providing any benefit 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.
10. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains
the entire understanding of the parties with respect to the employment of
Executive by the Company. Except for stock option agreements and other employee
benefit plans, 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. Except for stock option agreements and other employee benefit plans,
this Agreement supercedes 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 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.
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d. Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
e. Assignment. This Agreement shall not be assignable by
Executive. This Agreement may be assigned by the Company to a company which 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 the rights and obligations of such successor company,
provided that any assignee expressly assumes the obligations, rights and
privileges of this Agreement.
f. Mitigation. Executive shall be required to mitigate the
amount of any payment provided for pursuant to this Agreement by seeking other
employment, taking into account the provisions of Section 8 of this Agreement.
Anything in this Agreement to the contrary notwithstanding, in the event that
Executive provides services for pay to anyone other than the Company or any of
its affiliates from the date Executive's employment hereunder is terminated
until twelve months thereafter, the amounts paid to Executive during such period
pursuant to this Agreement shall be reduced by the amounts of salary, bonus or
other compensation earned by Executive during such period as a result of
Executive's performing such services (regardless of when such earned amounts are
actually paid to Executive).
g. Successors; Binding Agreement. This Agreement shall
inure to the benefit of and be binding upon personal or legal representatives,
executors, administrators, successors, heirs, distributes, devises and legatees.
h. Notice. For the purpose of this Agreement, notices and
all other 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 Agreement, 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:
Western Multiplex Corporation
0000 Xxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
If to Executive:
To the most recent address of Executive set forth in the personnel
records of the Company.
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i. 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.
j. 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.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
WESTERN MULTIPLEX CORPORATION
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: President and COO
EXECUTIVE:
/s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx
