EXHIBIT 10.50
[PROXIM LETTERHEAD]
August 1, 2003
Xxxxxxxx Xxxxx
[address omitted]
Dear Xxx:
In accordance with your conversation with Xxxxx Xxxxxxx on June 5, 2003, this
letter (the "Agreement") sets forth the details of the transitioning of your
duties and the termination of your service with Proxim Corporation (the
"Company").
1. SEPARATION. The Company and you have agreed that your service to the
Company in the capacity of Chief Executive Officer of the Company ended
effective June 5, 2003 (the "Notice Date").
2. TRANSITION PERIOD. Between the Notice Date and August 5, 2003 (the
"Separation Date"), you will serve the Company in the capacity of a
non-executive employee and as Chairman of the Board of Directors. During the
period of time between the Notice Date and the Separation Date (such period, the
"Transition Period"), you will be responsible for working with the Company to
transition your current projects and duties to the appropriate individual(s)
designated by the Company. During the Transition Period, the Company will
continue to pay you your regular base salary and employee benefits as in effect
on the Notice Date. You will be expected to be reasonably available to the
Company during the Transition Period, working out of your principal office in
San Francisco (the "Office"). The Company will continue to reimburse you for the
rental cost of the Office through the Separation Date. However, the Company will
pay for the employment of your administrative assistant only through July 4,
2003; thereafter, any costs associated with the performance of her services will
be solely at your expense. During the Transition Period, you will continue to be
bound by, and you agree to comply with, all of the Company's written policies
and procedures, including but not limited to its policies on xxxxxxx xxxxxxx
that were previously applicable to you as Chief Executive Officer of the
Company.
You acknowledge and agree that the termination of your employment is a
termination by the Company without "cause" pursuant to Section 11.01(b) of the
Amended and Restated Employment and Co-Investment Agreement dated October 31,
1999 (as amended, the "Employment Agreement"). You further acknowledge and agree
that you have been provided with the required written notice at least sixty (60)
days in advance of the Separation Date in full satisfaction of the Company's
obligations pursuant to Section 11.01 of the Employment Agreement.
3. SEPARATION DATE. At the conclusion of the Transition Period, you will
resign from all positions you then hold with the Company and any of its
affiliates, including but not
limited to your membership on the Company's Board of Directors (the "Board"),
effective as of the Separation Date. On or before the Separation Date, you will
be paid for all accrued but unpaid salary and any accrued but unused vacation
time.
4. SEVERANCE BENEFITS. Although the Company has no obligation to provide
any severance benefits to you, provided you execute the general release of all
claims attached hereto as Exhibit A (the "Release") between August 5, 2003 and
August 22, 2003, and do not revoke the Release, and provided further that you
comply with all of your obligations to the Company under this Agreement and the
Employment Agreement, on the effective date of the Release (i.e., when it is no
longer revocable by you), the Company will amend your outstanding stock option
agreement(s) (as listed on Exhibit B) to provide (a) that all of the shares
subject to such stock options shall be fully vested and exercisable as of the
Separation Date, and (b) that you may have until the one (1) year anniversary of
the Separation Date in which to exercise the stock options as to any vested and
unexercised shares.
5. HEALTH INSURANCE. As a result of the termination of your services to
the Company, your coverage under the Company's group health insurance programs
will terminate on August 31, 2003. You will have the opportunity to elect
continuation coverage under the Company's group health insurance programs as
permitted pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA") or, if applicable, state insurance laws. You will be
provided with information regarding, and an opportunity to elect, such coverage
shortly.
6. EQUITY BENEFITS. Exhibit B to this Agreement sets forth your right to
purchase shares of the Company's capital stock and all shares of the capital
stock of the Company held by you, in each case as of the Separation Date and
prior to any acceleration of vesting to which you may be entitled under this
Agreement. You acknowledge and agree that except as set forth in this Agreement
and in those stock agreements (which documents are incorporated herein by
reference) which govern your rights to the shares described on Exhibit B, you
have no other right, title, interest, or claim in or to any shares of the
Company's capital stock.
7. OTHER COMPENSATION OR BENEFITS. You acknowledge that, except as
expressly provided in this Agreement, you will have no entitlement to any
salary, vacation pay, commissions, bonuses, wages, compensation or other
benefits after the Separation Date.
8. EXPENSE REIMBURSEMENTS. Subject to the provisions of Section 2 above,
the Company will reimburse you for those business expenses reasonably incurred
by you in connection with your duties to the Company prior to the Separation
Date. Please submit your documented expense reimbursement request in accordance
with the Company's standard policy and the Company will reimburse you for such
appropriately submitted expenses prior to September 13, 2003.
9. RETURN OF COMPANY PROPERTY/LAPTOP COMPUTER. As a condition to the
receipt of any severance benefits offered pursuant to this Agreement, you are
required to return to the Company, no later than the Separation Date, all
Company documents (and all copies thereof) and other Company property (including
any confidential information or trade secrets) that you have had in your
possession at any time, other than Company documents provided to you that relate
to your employment relationship with the Company, such as benefit plans, Company
policies and
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the like. Notwithstanding the foregoing, the Company agrees that you shall be
permitted to keep the laptop computer that the Company previously issued to you
(the "Laptop") after the Company has had the opportunity to reformat the
Laptop's storage unit. Accordingly, on the Separation Date, and contingent upon
your providing the Company with the opportunity to reformat the Laptop's storage
unit, the Company shall transfer legal title to the Laptop to you.
10. CONFIDENTIALITY. The provisions of this Agreement will be held in
strictest confidence by you and the Company and will not be publicized or
disclosed in any manner whatsoever; provided, however, that: (a) you may
disclose this Agreement in confidence to your immediate family; (b) the parties
may disclose this Agreement in confidence to their respective attorneys,
accountants, auditors, tax preparers, and financial advisors; (c) the Company
may disclose this Agreement as necessary to fulfill legally required corporate
reporting or disclosure requirements; and (d) the parties may disclose this
Agreement insofar as such disclosure may be necessary to enforce its terms or as
otherwise required by law.
11. CONFIDENTIAL INFORMATION; NON-SOLICITATION. You understand and agree
that this Agreement is not intended to modify or supersede your obligations
pursuant to (i) Sections 3.01 and 4.01 of the Employment Agreement, (ii) the
memorandum from Xxxx Xxxxxxxxx related to the "Use of Confidential Information"
executed by you on September 1, 2000, and (iii) the Employment, Confidential
Information and Invention Assignment Agreement executed by you on January 9,
2002.
12. NONDISPARAGEMENT. During the Transition Period and thereafter, (a) you
agree not to disparage the Company or its officers, directors, employees,
shareholders and agents and (b) the Company agrees not to (and to direct its
officers, directors, employees, shareholders or agents not to) disparage you.
13. CONTINUING REPRESENTATIONS. This Agreement in no way modifies the
Company's ability to terminate your employment for "cause" pursuant to Section
11.01(a) of the Employment Agreement during the Transition Period.
14. MISCELLANEOUS. Any amounts payable to you pursuant to this Agreement
will be subject to applicable employment tax withholdings and other lawful
deductions. This Agreement constitutes the complete, final and exclusive
embodiment of the entire agreement between you and the Company with regard to
this subject matter, and it supersedes any prior understandings or agreements,
whether oral or written. It is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained herein.
This Agreement will be deemed to have been entered into and will be construed
and enforced in accordance with the laws of the State of California as applied
to contracts made and to be performed entirely within California. This Agreement
may be executed in counterparts, each of which shall be deemed an original, all
of which together shall constitute one and the same instrument. Facsimile
signatures shall suffice as originals.
[continued on the next page]
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If this Agreement is acceptable to you, please sign below and return the
original to me on or before August 22, 2003.
I wish you good luck in your future endeavors.
Sincerely,
PROXIM CORPORATION
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Xxxxx Xxxxxxx, on behalf of the Board
UNDERSTOOD AND AGREED:
/s/ Xxxxxxxx Xxxxx
------------------------------------
Xxxxxxxx Xxxxx
8/21/03
------------------------------------
Date
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EXHIBIT A
GENERAL RELEASE OF ALL CLAIMS
I, Xxxxxxxx Xxxxx, understand and agree that my employment, and my service
in any capacity, with Proxim Corporation (the "Company") terminated on August 5,
2003. In consideration for the benefits provided to me by the Company, as
described in the separation agreement (the "Agreement," incorporated by
reference herein) between the Company and me which I executed on August 21,
2003, which benefits I would not otherwise be entitled to, I hereby make the
following representations, warranties and affirmations:
1. I represent and warrant that at all times I have been in compliance
with the terms and conditions of the Agreement and all of my other obligations
to the Company. I expressly represent and warrant that I have returned all of
the Company's property, including but not limited to any confidential or
proprietary information, trade secrets and documents that have been at any time
in my possession; provided, however, that in accordance with Section 9 of the
Agreement, I shall be entitled to retain my "Laptop" (as defined in the
Agreement) after the Company has reformatted the storage unit, copies of Company
employee benefit plans, Company policies and the like. I further represent and
warrant that I have resigned as a member of the Company's Board of Directors
effective August 5, 2003.
2. I acknowledge and agree that I have received all salary, accrued
vacation, commissions, bonuses, wages, compensation or other such sums due to me
as of the Separation Date, other than the benefits, if any, to be provided to me
after the Separation Date pursuant to Sections 4 and 8 of the Agreement.
3. In consideration of the benefits to be provided to me by the Company as
set forth in the Agreement, I, on behalf of myself, my agents, attorneys,
successors, assigns, heirs and executors hereby fully and forever release and
discharge the Company, and its current and former officers, directors,
shareholders, partners, members, investors, administrators, employees,
contractors, agents, attorneys, insurers, affiliates, successors, predecessors,
subsidiaries, assigns and fiduciaries in their individual and/or representative
capacities (collectively, the "Released Parties") from any and all claims,
suits, agreements, promises, damages, disputes, controversies, contentions,
differences, judgments, debts, dues, sums of money, accounts, reckonings, bonds,
causes of action, bills, covenants, contracts, variances, trespasses, extents,
executions and demands of any kind whatsoever, which I or my agents, attorneys,
successors, assigns, heirs and executors ever had, now have or may have against
the Released Parties or any of them, in law, admiralty or equity, for, upon, or
by reason of, any matter, action, omission, course or thing whatsoever occurring
up to the date this Release is signed by me, arising in connection with or in
relationship to my employment or other service relationship with the Company or
its affiliates, the termination of any such employment or service relationship
and any applicable employment, compensatory or equity arrangement with the
Company or its respective affiliates (such released claims are collectively
referred to herein as the "Released Claims"); provided that such Released Claims
shall not include (a) any claims to enforce my rights under, or with respect to,
this Release or Sections 6.01(h) or 10.01 of the Employment Agreement (as
defined in the Agreement), or (b) any other rights to indemnification (whether
arising under the Company's Certificate of Incorporation or Bylaws, any
applicable law, or any Company resolution or Company written policy, or (c) any
rights under any Director and Officer liability insurance
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policy or other insurance maintained by the Company for the benefit of its
directors or employees. I understand and agree that this Release is a full and
complete waiver of all claims, whether known or unknown by me, including, but
not limited to, any claims with respect to my entitlement to any wages, bonuses,
severance benefits or other forms of compensation; any claims with respect to my
purchase of, or right to purchase, any capital stock of the Company; any claims
of wrongful discharge, breach of contract, breach of the covenant of good faith
and fair dealing, violation of public policy, defamation, personal injury,
emotional distress; any claims under Title VII of the Civil Rights Act of 1964,
as amended, the Fair Labor Standards Act, the California Fair Employment and
Housing Act, the Equal Pay Act of 1963, the Americans With Disabilities Act,
California Labor Code Section 1197.5, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1967, as amended, the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") as related to severance
benefits, any family and medical leave acts; and any claims under any other
federal, state, and local laws and regulations relating to employment or
employment discrimination. I agree that the benefits provided to me pursuant to
the Agreement are in full satisfaction and settlement of any such Released
Claims. I represent and warrant that I have not filed, and I will not file, any
lawsuit or institute any proceeding, charge, complaint or action asserting any
such claim before any federal, state, or local administrative agency or court
against any Released Party, concerning any event occurring prior to the signing
of this Release. Nothing in this Release, however, shall be construed as
prohibiting me from filing a charge or complaint with the Equal Employment
Opportunity Commission ("EEOC") or participating in an investigation or
proceeding conducted by the EEOC. I also hereby agree that nothing contained in
this Release shall constitute or be treated as an admission of liability or
wrongdoing by any of the Released Parties.
4. I represent that I am knowingly and voluntarily waiving any and all
rights that I currently may have arising under the Age Discrimination in
Employment Act of 1967, as amended. I understand that I have the right to
consult with an attorney before signing this Release. I also understand that I
may have twenty-one (21) days after my receipt of this Release within which I
may review and consider, discuss with an attorney of my own choosing, and decide
to execute or not execute it. I further understand that for a period of seven
(7) days after I sign this Release, I may revoke his release of all claims. In
order to revoke this Release, I must deliver to the Chief Executive Officer of
the Company, by no later than seven (7) days after I execute this Release, a
letter stating that I am revoking it. I understand and agree that if I revoke
this Release, I will have no right to receive, and the Company will have no
obligation to provide, any of the benefits described in the Agreement. If I do
not deliver such a letter, then this Release shall become effective upon the
expiration of the seventh day after I execute this Release (the "Effective
Date"). If I execute this Release prior to the twenty-first (21st) day after its
delivery to me, I hereby acknowledge that my decision to execute this Release
prior to the expiration of such twenty-one (21) day period was entirely
voluntary.
[continued on next page]
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5. I UNDERSTAND THAT MY RELEASE SET FORTH ABOVE INCLUDES A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS. In giving this release, which includes claims which
may be unknown to me at present, I acknowledge that I have read and understand
Section 1542 of the California Civil Code which reads as follows: "A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby
expressly waive and relinquish all rights and benefits under that section and
any law of any jurisdiction of similar effect with respect to my release of any
unknown or unsuspected claims I may have against the Released Parties.
6. If any one or more of the provisions of this Release, including,
without limitation, my obligations pursuant to any one or more provisions of the
Agreement, shall be or become invalid, illegal or unenforceable in any respect
or to any degree, the validity, legality and enforceability of the remaining
provisions of this Release (and the Agreement) shall not be affected thereby and
said illegal, unenforceable or invalid provisions shall be deemed not to be a
part of this Release.
7. This Release, including the Agreement, constitutes the complete, final
and exclusive embodiment of the entire agreement between the Company and me with
regard to this subject matter. This Release is entered into without reliance on
any promise or representation, written or oral, other than those expressly
contained herein, and it supersedes any other such promises, warranties or
representations. This Release will be deemed to have been entered into and will
be construed and enforced in accordance with the laws of the State of California
as applied to contracts made and to be performed entirely within California.
9. I hereby represent and warrant that:
(a) I have been given at least twenty-one (21) days from the date
that this Release was delivered to me in which to accept its terms;
(b) I have carefully read and fully understand all of the terms of
the Agreement;
(c) I have been advised in writing to consult with an attorney of my
choice prior to executing this Agreement, and I have done so or
knowingly declined to do so; and
(d) I knowingly and voluntarily agree to all of the terms set forth
in this Release with full appreciation that I am forever foreclosed
from pursuing any of the rights waived herein.
/s/ Xxxxxxxx Xxxxx
-----------------------------------------
Xxxxxxxx Xxxxx
8/21/03
-----------------------------------------
Date
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EXHIBIT B
EQUITY RIGHTS
CLOSING STATEMENT Proxim Corporation
Termination Date: 8/5/2003 000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxx Xxxxxxxxx, XX 00000
[Optionee address omitted]
Exercisable Options
GRANT SHARES SHARES SHARES VESTING LAST DATE
NUMBER DATE PLAN/TYPE PRICE GRANTED EXERCISED EXERCISABLE STOP DATE TOTAL PRICE TO EXERCISE
W0000360 5/9/2001 1999/NQ $7.0000 900,000 0 900,000 8/5/2003 $6,300,000.00 11/3/2003
00002257 4/16/2002 1999/ISO $2.6000 115,383 0 48,078 8/5/2003 $ 125,002.80 11/3/2003
00002258 4/16/2002 1999/NQ $2.6000 884,617 0 366,597 8/5/2003 $ 958,352.20 11/3/2003
1,900,000 0 $7,383,355.00
