Exihibit 10.95
[LOGO] P COM
April 8, 2002
Xx. Xxxx X. Xxxxxx
Chief Operating Officer
P-Com, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Dear Xxxx:
I am pleased to inform you that on January 30, 2002 the Board of Directors
of P-Com, Inc. (the "Company") authorized me to offer a special benefit program
for you and certain other key executives. The purpose of this letter agreement
is to set forth the terms and conditions of your benefit package and to explain
the limitations which will govern the overall value of your benefits.
1. Severance Benefits. You shall become entitled to receive the
following severance benefits if your employment with the Company terminates by
reason of an Involuntary Termination:
a. Salary Continuation Payments. You shall be entitled to salary
continuation payments in an aggregate amount equal to the greater of [*]. Such
salary continuation payments shall be paid in a series of successive equal
biweekly installments over the twelve (12)-month period measured from the date
of your Involuntary Termination and shall be subject to the Company's collection
of all applicable Federal, State and local income and employment withholding
taxes.
b. Options. Notwithstanding your Involuntary Termination, your
(i) unvested options to purchase common stock of the Company shall continue to
vest and (ii) such options plus options already vested but unexercised as of the
date of your Involuntary Termination, shall continue to be exercisable in
accordance with the Company's 1995 Stock Option/Stock Issuance Plan from the
date of Involuntary Termination to [*]. You shall not have any right to receive
any other Company stock options, or have any right to receive any other Company
stock after the date of your Involuntary Termination.
c. Unpaid Benefits. You will receive a lump sum payment of all
unpaid vacation days that you have accrued through the date of your Involuntary
Termination. Such payment shall be made to you within fifteen (15) days after
the date of such Involuntary Termination, subject to the Company's collection of
all applicable Federal, State and local income and employment withholding taxes.
[*] Confidential treatment requested
Xx. Xxxx X.Xxxxxx
Page 2
2. Limitation of Severance Benefits.
(a) Source of Benefit. The severance benefits to which you may
become entitled under of this Agreement are the only severance benefits to which
you are entitled upon the termination of your employment with the Company, and
no other severance benefits shall be provided to you by the Company pursuant to
any other severance plan or program of the Company.
(b) Termination for Cause. In the event your employment hereunder
is terminated for cause, no severance benefits shall be provided to you under
this Agreement.
3. Indemnification. The indemnification provisions for officers and
directors under the Company certificate of incorporation, indemnification
agreement, Bylaws and insurance policies will (to the maximum extent permitted
by law) be extended to you with respect to any and all matters, events or
transactions occurring or effected during your employment with the Company.
4. General Creditor Status. The payments and benefits to which you
become entitled hereunder will be paid, when due, from the general assets of the
Company, and no trust fund, escrow arrangement or other segregated account will
be established as a funding vehicle for such payment. Accordingly, your right
(or the right of the personal representatives or beneficiaries of your estate)
to receive any payments or benefits hereunder will at all times be that of a
general creditor of the Company and will have no priority over the claims of
other general creditors.
5. Definitions. Involuntary Termination means the termination of your
employment with the Company (or successor):
(i) involuntarily upon your discharge or dismissal,
(ii) voluntarily upon your resignation following (a) a change in level of
management to which you report, (b) a reduction in your level of compensation
(including base salary, fringe benefits and target bonus under any incentive
performance plan) other than a reduction made in connection with a company-wide
expense reduction or (c) a change in your place of employment which is more than
fifty (50) miles from your place of employment, provided and only if such change
or reduction is effected without your written concurrence, or
(iii) by reason of your death or disability.
[*] Confidential treatment requested
Xx. Xxxx X.Xxxxxx
Page 3
6. Miscellaneous. This letter agreement will be binding upon the
Company, its successors and assigns (including, without limitation, the
surviving entity in any change in control transaction) and is to be construed
and interpreted under the laws of the State of California. Except as set forth
herein, this letter agreement supersedes all prior agreements between you and
the Company relating to the subject of severance benefits payable upon
Involuntary Termination, including the Company's 1995 Stock Option/Stock
Issuance Plan and the agreements evidencing the options issued thereunder, and
may only be amended by written instrument signed by you and an authorized
officer of the Company. If any provision of this letter agreement as applied to
any party or to any circumstance should be adjudged by a court of competent
jurisdiction to be void or unenforceable for any reason, the invalidity of that
provision will in no way affect (to the maximum extent permissible by law) the
application of such provision under circumstances different from those
adjudicated by the court, the application of any other provision of this letter
agreement, or the enforceability or invalidity of this letter agreement as a
whole. Should any provision of this letter agreement become or be deemed
invalid, illegal or unenforceable in any jurisdiction by reason of the scope,
extent or duration of its coverage, then such provision will be deemed amended
to the extent necessary to conform to applicable law so as to be valid and
enforceable or, if such provision cannot be so amended without materially
altering the intention of the parties, then such provision will be stricken and
the remainder of this letter agreement will continue in full force and effect.
7. Independent Legal Counsel. By executing this letter agreement, you
acknowledge that you have had an opportunity to seek advice from your own legal
counsel with respect to the matters contained herein.
Please indicate your acceptance of the foregoing provisions of this letter
agreement by signing the enclosed copy of this agreement and returning it to the
Company.
P-COM, INC.: ACCEPTANCE:
Signature: /s/ Xxxxxx X. Xxxxxxx Signature: /s/ Xxxx X. Xxxxxx
------------------------- -------------------------
Xxxxxx X. Xxxxxxx Xxxx X. Xxxxxx
Chairman and Chief Executive Officer
[*] Confidential treatment requested
