EXHIBIT 10.17
TIER I
PC-TEL, INC.
MANAGEMENT RETENTION AGREEMENT
This Management Retention Agreement (the "Agreement") is made and
entered into by and between XXXXXX XXXXXX (the "Executive") and PC-TEL, INC.
(the "Company"), effective as of the latest date set forth by the signatures of
the parties hereto below (the "Effective Date").
RECITALS
A. It is expected that the Company from time to time may consider a
Change of Control (as defined below). The Board of Directors of the Company (the
"Board") recognizes that such consideration can be a distraction to Executive
and can cause Executive to consider alternative employment opportunities. The
Board has determined that it is in the best interests of the Company and its
stockholders to assure that the Company will have the continued dedication and
objectivity of Executive, notwithstanding the possibility, threat or occurrence
of a Change of Control of the Company.
B. The Board believes that it is in the best interests of the Company
and its stockholders to provide Executive with an incentive to continue his
employment and to motivate Executive to maximize the value of the Company upon a
Change of Control for the benefit of its stockholders.
C. The Board believes that it is imperative to provide Executive with
severance benefits upon Executive's termination of employment following a Change
of Control which provides Executive with enhanced financial security and
incentive and encouragement to remain with the Company notwithstanding the
possibility of a Change of Control.
D. Certain capitalized terms used in this Agreement are defined in
Section 4 below.
The parties hereto agree as follows:
1. Term of Agreement. This Agreement shall terminate upon the date that
all obligations of the parties hereto with respect to this Agreement have been
satisfied.
2. At-Will Employment. The Company and Executive acknowledge that
Executive's employment is and shall continue to be at-will, as defined under
applicable law, and may be terminated by either party at any time, with or
without cause or notice. If Executive's employment terminates for any reason,
including (without limitation) any termination prior to a Change of Control,
Executive shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans or
pursuant to other written agreements with the Company.
3. Change of Control Severance Benefits.
(a) Involuntary Termination other than for Cause, Death or
Disability or Voluntary Termination for Good Reason Following A Change of
Control. If, within twelve (12) months following a Change of Control,
Executive's employment is terminated (i) involuntarily by the Company other than
for Cause, death or Disability or (ii) by Executive pursuant to a Voluntary
Termination for Good Reason, then, subject to Executive entering into a standard
form of mutual release of claims with the Company, the Company shall provide
Executive with the following benefits upon such termination:
(i) Severance Payment. A lump-sum cash payment in an
amount equal to two hundred percent (200%) of Executive's Annual Compensation;
(ii) Continued Executive Benefits. Company-paid health,
dental, vision, long-term disability and life insurance coverage at the same
level of coverage as was provided to such Executive immediately prior to the
Change of Control and at the same ratio of Company premium payment to Executive
premium payment as was in effect immediately prior to the Change of Control (the
"Company-Paid Coverage"). If such coverage included Executive's dependents
immediately prior to the Change of Control, such dependents shall also be
covered at Company expense. Company-Paid Coverage shall continue until the
earlier of (A) one year from the date of termination, or (B) the date upon which
Executive and his dependents become covered under another employer's group
health, dental, vision, long-term disability and life insurance plans that
provide Executive and his dependents with comparable benefits and levels of
coverage. For purposes of Title X of the Consolidated Budget Reconciliation Act
of 1985 ("COBRA"), the date of the "qualifying event" for Executive and his or
her dependents shall be the date upon which the Company-Paid Coverage commences,
and each month of Company-Paid Coverage provided hereunder shall offset a month
of continuation coverage otherwise due under COBRA.
(iii) Pro-Rated Bonus Payment. A lump-sum cash payment
equal to one hundred percent (100%) of the higher of (A) Executive's Target
Bonus as in effect for the fiscal year in which the Change of Control occurs or
(B) Executive's Target Bonus as in effect for the fiscal year in which
Executive's termination occurs. Such higher amount will be pro-rated by
multiplying such bonus amount in clause (A) or (B), as applicable, by a
fraction, the numerator of which shall be the number of days prior to
Executive's termination during such fiscal year, and the denominator of which
shall be three-hundred and sixty-five.
(iv) Equity Compensation Accelerated Vesting. One Hundred
percent (100%) of the unvested portion of any stock option, restricted stock or
other Company equity compensation held by or granted to Executive shall be
automatically accelerated in full so as to become completely vested.
(b) Voluntary Resignation. If Executive's employment terminates
by reason of Executive's voluntary resignation (and is not a Voluntary
Termination for Good Reason), then Executive shall not be entitled to receive
severance or other benefits except for those (if any) as may then be established
under the Company's then existing severance and benefits plans or pursuant to
other written agreements with the Company.
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(c) Disability; Death. If Executive's employment with the Company
terminates as a result of Executive's Disability, or if Executive's employment
is terminated due to the death of Executive, then Executive shall not be
entitled to receive severance or other benefits except for those (if any) as may
then be established under the Company's then existing severance and benefits
plans or pursuant to other written agreements with the Company.
(d) Termination for Cause. If Executive is terminated for Cause,
then Executive shall not be entitled to receive severance or other benefits.
(e) Termination Apart from Change of Control. In the event
Executive's employment is terminated for any reason, either prior to the
occurrence of a Change of Control or after the twelve (12) month period
following a Change of Control, then Executive shall be entitled to receive
severance and any other benefits only as may then be established under the
Company's then existing severance and benefits plans or pursuant to other
written agreements with the Company.
4. Definition of Terms. The following terms referred to in this
Agreement shall have the following meanings:
(a) Annual Compensation. "Annual Compensation" shall mean an
amount equal to Executive's Company annual base salary.
(b) Target Bonus. "Target Bonus" shall mean Executive's annual
bonus, assuming one hundred percent (100%) "on target" satisfaction of any
performance milestones.
(c) Cause. "Cause" shall mean (i) an act of personal dishonesty
taken by Executive in connection with his responsibilities as an employee and
intended to result in substantial personal enrichment of Executive, (ii)
Executive being convicted of a felony, (iii) a willful act by Executive which
constitutes gross misconduct and which is injurious to the Company, or (iv)
following delivery to Executive of a written demand for performance from the
Company which describes the basis for the Company's reasonable belief that
Executive has not substantially performed his duties, continued violations by
Executive of Executive's obligations to the Company which are demonstrably
willful and deliberate on Executive's part.
(d) Change of Control. "Change of Control" means the occurrence
of any of the following events:
(i) Any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the total voting power represented by the Company's then outstanding
voting securities who is not already such as of the Effective Date of this
Agreement; or
(ii) The consummation of the sale or disposition by the
Company of all or substantially all the Company's assets; or
(iii) The consummation of a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting
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securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining out-standing or by being converted into voting
securities of the surviving entity or its parent) at least fifty percent (50%)
of the total voting power represented by the voting securities of the Company or
such surviving entity or its parent outstanding immediately after such merger or
consolidation; or
(iv) A change in the composition of the Board occurring
within a two-year period, as a result of which fewer than a majority of the
directors are Incumbent Directors. "Incumbent Directors" shall mean directors
who either (A) are directors of the Company as of the date upon which this
Agreement was entered into, or (B) are elected, or nominated for election, to
the Board with the affirmative votes of at least a majority of those directors
whose election or nomination was not in connection with any transaction
described in subsections (i), (ii), or (iii) above, or in connection with an
actual or threatened proxy contest relating to the election of directors to the
Company.
(e) Disability. "Disability" shall mean that Executive has been
unable to perform his Company duties as the result of his incapacity due to
physical or mental illness, and such in-ability, at least 26 weeks after its
commencement, is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to Executive or Executive's legal
representative (such Agreement as to acceptability not to be unreasonably
withheld). Termination resulting from Disability may only be effected after at
least 30 days' written notice by the Company of its intention to terminate
Executive's employment. In the event that Executive resumes the performance of
substantially all of his duties hereunder before the termination of his
employment becomes effective, the notice of intent to terminate shall
automatically be deemed to have been revoked.
(f) Voluntary Termination for Good Reason. "Voluntary Termination
for Good Reason" shall mean Executive voluntarily resigns after the occurrence
of any of the following (i) without Executive's express written consent, a
material reduction of Executive's duties, title, authority or responsibilities,
relative to Executive's duties, title, authority or responsibilities as in
effect immediately prior to such reduction, or the assignment to Executive of
such reduced duties, title, authority or responsibilities; provided, however,
that a reduction in duties, title, authority or responsibilities solely by
virtue of the Company being acquired and made part of a larger entity (as, for
example, when the senior vice-president of a business unit of the Company
remains as such following a Change of Control) shall not by itself constitute
grounds for a "Voluntary Termination for Good Reason;" (ii) without Executive's
express written consent, a material reduction, without good business reasons, of
the facilities and perquisites (including office space and location) available
to Executive immediately prior to such reduction; (iii) a reduction by the
Company in the base salary of Executive as in effect immediately prior to such
reduction; (iv) a material reduction by the Company in the aggregate level of
employee benefits, including bonuses, to which Executive was entitled
immediately prior to such reduction with the result that Executive's aggregate
benefits package is materially reduced (other than a reduction that generally
applies to Company employees); (v) the failure of the Company to obtain the
assumption of this agreement by any successors contemplated in Section 8(a)
below; or (vi) any act or set of facts or circumstances which would, under
California case law or statute constitute a constructive termination of
Executive.
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5. Non-Solicitation. In consideration for the severance benefits
Executive is to receive herein, if any, Executive agrees that he or she will
not, at any time during the one year following his or her termination date,
directly or indirectly solicit any individuals to leave the Company's (or any of
its subsidiaries') employ for any reason or interfere in any other manner with
the employment relationships at the time existing between the Company (or any of
its subsidiaries) and its current or prospective employees.
6. Section 280G. In the event that the severance and other benefits
provided for in this Agreement or otherwise payable to Executive (i) constitute
"parachute payments" within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code") and (ii) but for this Section, would be
subject to the excise tax imposed by Section 4999 of the Code, then Executive's
severance benefits under this Agreement shall be payable either
(i) in full, or
(ii) as to such lesser amount which would result in no
portion of such severance benefits being subject to excise tax under Section
4999 of the Code, whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the excise tax imposed by
Section 4999, results in the receipt by Executive on an after-tax basis, of the
greatest amount of severance benefits under this Agreement, notwithstanding that
all or some portion of such severance benefits may be taxable under Section 4999
of the Code. Unless the Company and Executive otherwise agree in writing, any
determination required under this Section shall be made in writing by the
Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon Executive and the Company for
all purposes. For purposes of making the calculations required by this Section,
the Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company
and Executive shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this Section. The Company shall bear all costs the Accountants may reasonably
incur in connection with any calculations contemplated by this Section.
7. Covenant Not to Compete. Upon the occurrence of a Change of Control,
in consideration of the severance and other benefits contemplated by this
Agreement, Executive agrees to abide by the covenant set forth in this Section
7, regardless of whether Executive continues as an employee of the Company or
its successor. Any proposal by the Company or its successor following a Change
of Control to waive, modify or amend this Section 7 shall have no effect on the
Company's obligations under this Agreement. In the event Executive breaches the
provisions of this Section 7, the severance and other benefits provided for in
this Agreement shall immediately terminate and Executive shall cease to earn or
be entitled to any additional payments under this Agreement.
(a) Noncompete. Until the end of the twelve month period
following the occurrence of a Change of Control, Executive will not directly or
indirectly engage in (whether as an employee, consultant, proprietor, partner,
director or otherwise), or have any ownership interest in, or participate in the
financing, operation, management or control of, any person, firm, corporation or
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business that engages or participates anywhere in the world in products or
services involving [analog soft modems, digital broadband, home networking or
embedded Internet access technology]. Ownership of less than 1% of the
outstanding voting stock of a publicly traded corporation will not constitute a
violation of this provision.
(b) Representations. The parties intend that the covenant
contained in Section 7(a) shall be construed as a series of separate covenants,
one for each county, city and state (or analogous entity) and country of the
world. If, in any judicial proceeding, a court shall refuse to enforce any of
the separate covenants, or any part thereof, then such unenforceable covenant,
or such part thereof, shall be deemed eliminated from this Agreement for the
purpose of those proceedings to the extent necessary to permit the remaining
separate covenants, or portions thereof, to be enforced.
(c) Reformation. In the event that the provisions of this Section
7 should ever be deemed to exceed the time or geographic limitations, or scope
of this covenant, permitted by applicable law, then such provisions shall be
reformed to the maximum time or geographic limitations, as the case may be,
permitted by applicable laws.
(d) Reasonableness of Covenants. Executive represents that he (i)
is familiar with the covenants not to compete, and (ii) is fully aware of his
obligations hereunder, including, without limitation, the reasonableness of the
length of time, scope and geographic coverage of these covenants.
8. Successors.
(a) Company's Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company's business and/or
assets shall assume the obligations under this Agreement and agree expressly to
perform the obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any such successor to the Company which executes and
delivers the assumption agreement described in this Section 8(a) or which
becomes bound by the terms of this Agreement by operation of law.
(b) Executive's Successors. The terms of this Agreement and all
rights of Executive hereunder shall inure to the benefit of, and be enforceable
by, Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
9. Notice.
(a) General. Notices and all other communications contemplated by
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or one day following mailing via Federal Express or
similar overnight courier service. In the case of Executive, mailed notices
shall be addressed to him at the home address which he most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary.
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(b) Notice of Termination. Any termination by the Company for
Cause or by Executive pursuant to a Voluntary Termination for Good Reason shall
be communicated by a notice of termination to the other party hereto given in
accordance with Section 9(a) of this Agreement. Such notice shall indicate the
specific termination provision in this Agreement relied upon, shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated, and shall specify the termination
date (which shall be not more than 30 days after the giving of such notice). The
failure by Executive to include in the notice any fact or circumstance which
contributes to a showing of Voluntary Termination for Good Reason shall not
waive any right of Executive hereunder or preclude Executive from asserting such
fact or circumstance in enforcing his rights hereunder.
10. Miscellaneous Provisions.
(a) No Duty to Mitigate. Executive shall not be required to
mitigate the value of any benefits contemplated by this Agreement, nor shall any
such benefits be reduced by any earnings or benefits that Executive may receive
from any other source.
(b) Waiver. No provision of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by Executive and by two authorized officers of the Company
(other than Executive). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(c) Whole Agreement. No agreements, representations or
understandings (whether oral or written and whether express or implied) which
are not expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof. This Agreement
represents the entire understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior arrangements and understandings
regarding same.
(d) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(e) Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(f) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
set forth below.
PC-TEL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Title: Director
Date: 11/15/01
XXXXXX XXXXXX
/s/ Xxxxxx X. Xxxxxx
Date: 11/15/01
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