Employment Agreement
EXHIBIT 10.1
April 18, 2009
Xx. Xxxxxx X. Xxxxxx III
Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000
Dear Xxx:
This letter agreement sets forth the terms of your employment with Xxxxxx Stratex Networks,
Inc. (the “Company”) as well as our understanding with respect to any termination of that
employment relationship. This Agreement will become effective on your first day of employment
which is anticipated to be on or about May 4, 2009.
1. Position and Duties. You will be employed by the Company as its Senior
Vice-President, Chief Financial Officer, reporting to the President and Chief Executive Officer.
This position will be based at our facility location in San Jose, California. You accept employment
with the Company on the terms and conditions set forth in this Agreement, and you agree to devote
your full business time, energy and skill to your duties at the Company; provided, however, that
you may serve in a volunteer capacity with any civic, educational or charitable organization so
long as such service does not materially interfere with your responsibilities and obligations as
Senior Vice President, Chief Financial Officer.
2. Term of Employment. Your employment with the Company is for no specified term,
and may be terminated by you or the Company at any time, with or without cause, subject to the
provisions of Paragraphs 4 and 5 below.
3. Compensation. You will be compensated by the Company for your services as
follows:
(a) Salary: You will be paid a monthly base salary of $25,000.00 ($300,000 per
year), less applicable withholding, in accordance with the Company’s normal payroll procedures. In
conjunction with your annual performance review, which will occur at or about the start of each
fiscal year (currently July 1st), your base salary will be reviewed by the Board, and may be
subject to adjustment based upon various factors including, but not limited to, your performance
and the Company’s profitability. Your base salary will not be reduced except as part of a salary
reduction program that similarly affects all members of the executive staff reporting to the Chief
Executive Officer of the Company, but will not be reduced prior to June 30, 2010 by virtue of any
such salary reduction program.
(b) Annual Short-Term Incentive Plan: Subject to the approval of the Board of
Directors or its Compensation Committee (as applicable, the “Board”) of such a plan for
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Company employees each year, starting in FY2010, you will be eligible to participate in the
Company’s Annual Incentive Plan with a target annual bonus of 50% of your annual base salary. You
will also be entitled to participate in the Company’s FY 2009 Annual Incentive Plan on the same
basis, prorated for the portion of FY 2009 falling between your start date and the end of FY 2009.
The Annual Incentive Plan will be paid (if minimum targets are met) in the calendar year in which
the relevant fiscal year ends, promptly after the completion of the fiscal year’s audit.
(c) Long-Term Incentive Program: Subject to Board approval each year, you will be
eligible to participate in a Long Term Incentive Plan. Starting with FY 2009, you will be eligible
to participate in the Company’s Long-Term Incentive Program as defined by the Board. The GAAP value
of your initial award, as determined by the Board at its reasonable discretion, will be $430,000.
The expected structure is (i) 50% of such value will be represented by options with a 3-year
vesting period (50%/25%/25%) and (ii) 50% of such value will be represented by performance shares
subject to vesting based on achievement of company financial performance criteria for the
three-year period ending at the end of FY 2011. The final structure is subject to determination by
the Board.
(d) Signing Bonus. You will receive a one-time cash bonus of $50,000, less applicable
withholding, payable on the first payroll date after your start date. You agree to repay this
amount to the Company if you resign from your employment with the Company (other than for Good
Reason as defined in Paragraph 5(d) below) prior to six (6) months after your start date.
(e) Benefits: You will have the right, on the same basis as other executives of the
Company, to participate in and to receive benefits under any Company group medical, dental, life,
disability or other group insurance plans, as well as under the Company’s business expense
reimbursement, educational assistance, holiday, and other benefit plans and policies. You will
also be eligible to participate in the Company’s 401(k) plan.
(f) Vacation: Once your employment begins, you will also accrue paid vacation at the
rate of three weeks per year. Maximum accrued vacation will be in accordance with the Company’s
vacation policy.
4. Voluntary Termination. In the event that you voluntarily resign from your
employment with the Company (other than for Good Reason as defined below), or in the event that
your employment terminates as a result of your death, you will be entitled to no compensation or
benefits from the Company other than those earned under Paragraph 3 through the date of your
termination. (For purposes of this Agreement, unless otherwise expressly provided, no part of (i)
the Annual Incentive Plan for the year in which your termination occurs, (ii) no part of the
performance shares for the multi-year period in which your termination occurs and (iii) no part of
options or restricted shares that are not vested as of your termination date will be deemed
earned.) You agree that if you voluntarily terminate your employment with the Company for any
reason, you will provide the Company with at least 10 business days’ written notice of your
resignation. The Company shall have the option, in its sole discretion, to make your resignation
effective at any time prior to the end of such notice period, provided the Company pays you an
amount equal to the base salary you would have earned through the end of the notice period.
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5. Other Termination. Your employment may be terminated under the circumstances set
forth below.
(a) Termination by Disability. If, by reason of any physical or mental incapacity,
you have been or will be prevented from performing your then-current duties under this Agreement
for more than three consecutive months, then, to the extent permitted by law, the Company may
terminate your employment without any advance notice. Upon such termination, if you sign a general
release of known and unknown claims in a form satisfactory to the Company (a “Release”), the
Company will provide you with the severance payments and benefits described in Paragraph 5(c).
Nothing in this paragraph shall affect your rights under any applicable Company disability plan;
provided, however, that your severance payments will be offset by any disability income payments
received by you so that the total monthly severance and disability income payments during your
severance period shall not exceed your then-current base salary.
(b) Termination for Cause or Death: The Company may terminate your employment at any
time for cause (as described below). If your employment is terminated by the Company for cause, or
if your employment terminates as a result of your death, you shall be entitled to no compensation
or benefits from the Company other than those earned under Paragraph 3 through the date of your
termination. Provided, however, that if your employment terminates as a result of your death, the
Company will pay your estate the prorated portion of any incentive bonus that you would have earned
during the incentive bonus period in which your employment terminates; such prorated bonus will be
paid at the time that such incentive bonuses are paid to other Company employees.
For purposes of this Agreement, a termination “for cause” occurs if you are terminated for any
of the following reasons: (i) theft, dishonesty, misconduct or falsification of any employment or
Company records; (ii) improper disclosure of the Company’s confidential or proprietary information;
(iii) any misconduct by you which has a material detrimental effect on the Company’s reputation or
business; (iv) your refusal or inability to perform any reasonably assigned duties (other than as a
result of a disability) after written notice from the Company to you of, and a reasonable
opportunity to cure, such failure or inability; or (v) your conviction (including any plea of
guilty or no contest) for any criminal act that impairs your ability to perform your duties under
this Agreement.
(c) Termination Without Cause: The Company may terminate your employment without
cause at any time. If your employment is terminated by the Company without cause, and you sign a
Release, which must be valid and enforceable no later than March 15 of the year following the year
in which the termination occurs, and you fully comply with your obligations under Paragraphs 7, 8,
and 10, you will receive the following severance benefits:
(i) severance payments at your final base salary rate for a period of twelve (12) months
following your termination; such payments will be subject to applicable withholding and made
monthly commencing as of the effective date of your release;
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(ii) payment of the premiums necessary to continue your and your covered dependents’ group
health insurance under COBRA (or to purchase other comparable health insurance coverage on an
individual basis if you are no longer eligible for COBRA coverage) until the earlier of (x) twelve
(12) months following your termination date; or (y) the date you and your covered dependents first
became eligible to participate in another employer’s group health insurance plans;
(iii) payment of the prorated portion of any incentive bonus that you would have earned, if
any, during the incentive bonus period in which your employment terminates (the pro-ration shall be
equal to the percentage of that bonus period that you are actually employed by the Company) without
taking into account any positive or negative discretionary adjustment, and such prorated bonus will
be paid to you at the time that such incentive bonuses, if any, are paid to continuing Company
employees;
(iv) with respect to any equity compensation subject to service-based vesting granted to you
by the Company, you will cease vesting upon your termination date (except that if termination
occurs prior to the first anniversary of your start date, vesting shall be accelerated to the
extent, if any, vesting would have occurred had you continued in service through the first
anniversary of the grant date of your initial award of service-based equity compensation); however,
you will be entitled to purchase any vested shares of stock that are subject to service-based
options until the earlier of (x) twelve (12) months following your termination date, or (y) the
date on which the applicable option(s) expire(s); except as set forth in this subparagraph, your
service-based vesting equity compensation awards will continue to be subject to and governed by the
Plan and the applicable award agreements between you and the Company; and
(v) reasonable outplacement assistance selected and paid for by the Company and actually
incurred and directly related to the termination of your services for the Company.
You will not be required to mitigate the severance payments and benefits described in Paragraphs
5(c)(i) — (v) above by seeking employment or otherwise, and there shall be no offset against
amounts due you on account of your subsequent employment (except as provided in Paragraph 5(c)(ii)
above and in Paragraph 10 below). Except as expressly set forth in this Paragraph 5(c), your
Company equity compensation awards will continue to be subject to and governed by the Company’s
2007 Stock Equity Plan (the “Plan”) and the applicable award agreements between you and the
Company.
(d) Resignation for Good Reason: If you resign from your employment with the Company
for Good Reason (as defined in this paragraph), and you sign a Release, which must be valid and
enforceable no later than March 15 of the year following the year in which the termination occurs,
and you fully comply with your obligations under Paragraphs 7, 8, and 10, you shall receive the
severance benefits described in Paragraph 5(c). For purposes of this Paragraph, “Good Reason”
means any of the following conditions, which condition(s) remain in effect 60 days after written
notice from you to the Chief Executive Officer of said condition(s):
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(i) a reduction in your base salary, other than a reduction that is similarly applicable to
all members of the Company’s executive staff;
(ii) a material reduction in your employee benefits, other than a reduction that is similarly
applicable to all of the members of the Company’s executive staff;
(iii) a material breach by the Company of any material provision of this Agreement; or
(iv) the relocation of the Company’s workplace to a location that is more than 75 miles from
your Company workplace of San Jose, California.
The foregoing condition(s) shall not constitute grounds for a Good Reason resignation unless you
have provided notice to the Chief Executive Officer of the existence of the one or more of the
above conditions within forty-five (45) days after you first become aware of the condition(s).
(e) Termination or Resignation For Good Reason Following a Change of Control: If,
within 18 months following any Change of Control (as defined below), your employment is terminated
by the Company without cause, or if you resign from your employment with the Company for Good
Reason Following a Change of Control (as defined below), you sign a Release, which must be valid
and enforceable no later than March 15 of the year following the year in which the termination
occurs, and you fully comply with your obligations under Paragraphs 7, 8, and 10, you shall receive
the severance benefits described in Paragraph 5(c); provided, that the time periods set forth in
subparagraphs 5(c)(i), ( ii), and (iv) shall each be increased by an additional twelve months. In
addition, if such termination occurs, you shall receive a payment (in lieu of any payment under
subparagraph 5(c)(iii)) equal to the greater of (i) the average of the annual incentive bonus
payments received by you, if any, for the previous three years, or (ii) your target incentive bonus
for the year in which your employment terminates. Such payment will be made to you within 15 days
following the date on which the general release of claims described above becomes effective. The
Company will also accelerate the vesting of all unvested service-based equity compensation granted
to you by the Company such that all of your Company service-based equity compensation will be fully
vested as of the date of your termination/resignation. With respect to any equity compensation
subject to performance-based vesting granted to you by the Company, if such termination occurs
within the second half of any performance measurement period, then if and to the extent the minimum
performance criteria for any performance measurement period in which your termination occurs are
satisfied, a pro rata portion of your performance shares for such period will vest upon the Board’s
determination, which may be based on audited financial statements for such period, that the
relevant performance criteria have been satisfied; the pro rata portion shall be (i) the proportion
of the performance shares for such period, based on the achievement of the performance criteria,
times (ii) a fraction whose numerator is the number of days between the commencement of such period
and the date of your termination and whose denominator is the total number of days in such period.
6. Change of Control/Good Reason Following a Change of Control.
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(a) For purposes of this Agreement, a “Change of Control” of the Company shall mean the
occurrence of any of the following unless both (i) immediately prior to such occurrence Xxxxxx
Corporation (“Xxxxxx”) owns more than 30% of the total combined voting power of the Company’s
outstanding securities and (ii) immediately after such occurrence (and the exercise or lapse of any
rights triggered by such occurrence) Xxxxxx owns a majority of such total combined voting power of
the outstanding capital stock of the Company:
(i) any merger, consolidation, share exchange or Acquisition, unless immediately following
such merger, consolidation, share exchange or Acquisition of at least 50% of the total voting power
(in respect of the election of directors, or similar officials in the case of an entity other than
a corporation) of (i) the entity resulting from such merger, consolidation or share exchange, or
the entity which has acquired all or substantially all of the assets of the Company (in the case of
an asset sale that satisfies the criteria of an Acquisition) (in either case, the “Surviving
Entity”), or (ii) if applicable, the ultimate parent entity that directly or indirectly has
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50%
or more of the total voting power (in respect of the election of directors, or similar officials in
the case of an entity other than a corporation) of the Surviving Entity (the “Parent Entity”) is
represented by Company securities that were outstanding immediately prior to such merger,
consolidation, share exchange or Acquisition (or, if applicable, is represented by shares into
which such Company securities were converted pursuant to such merger, consolidation, share exchange
or Acquisition), or
(ii) any person or group of persons (within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended and in effect from time to time) directly or indirectly acquires
beneficial ownership (determined pursuant to Securities and Exchange Commission Rule 13d-3
promulgated under the said Exchange Act) other than through a merger, consolidation, or Acquisition
of securities possessing more than 30% of the total combined voting power of the Company’s
outstanding securities other than (i) Xxxxxx, provided that this exclusion of Xxxxxx shall no
longer apply after such time, if any, as Xxxxxx beneficially owns less than 30% of such total
voting power, (ii) an employee benefit plan of the Company or any of its Affiliates (other than
Xxxxxx), (iii) a trustee or other fiduciary holding securities under an employee benefit plan of
the Company or any of its Affiliates (other than Xxxxxx), or (iv) an underwriter temporarily
holding securities pursuant to an offering of such securities, or
(iii) over a period of 36 consecutive months or less, there is a change in the composition of
the Board such that a majority of the Board members (rounded up to the next whole number, if a
fraction) ceases, by reason of one or more proxy contests for the election of Board members, to be
composed of individuals each of whom meet one of the following criteria: (i) have been a Board
member continuously since the adoption of this Plan or the beginning of such 36 month period, (ii)
have been appointed by Xxxxxx Corporation, or (iii) have been elected or nominated during
such 36 month period by at least a majority of the Board members that (x) belong to the same class
of director as such Board member and (y) satisfied the criteria of this subsection (c) when they
were elected or nominated, or
(iv) a majority of the Board determines that a Change of Control has occurred, or
(v) the complete liquidation or dissolution of the Company.
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For the purposes of this Agreement, the terms “Acquisition” and “Affiliate” have the meaning set
forth in the Plan.
(b) For purposes of this Agreement, “Good Reason Following a Change of Control” means any of
the following conditions, which condition(s) remain in effect 60 days after written notice from you
to the Chief Executive Officer of said condition(s):
(i) a material and adverse change in your position, duties or responsibilities for the
Company, as measured against your position, duties or responsibilities immediately prior to the
Change of Control; or
(ii) a reduction in your base salary as measured against your base salary immediately prior to
the Change in Control; or
(iii) a material reduction in your employee benefits, other than a reduction that is similarly
applicable to a majority of the members of the Company’s executive staff; or
(iv) the relocation by more than 75 miles of your Company workplace of San Jose, California.
7. Confidential and Proprietary Information: As a condition of your employment, you
agree to sign and abide by the Company’s standard form of employee proprietary
information/confidentiality/assignment of inventions agreement.
8. Termination Obligations.
(a) You agree that all property, including, without limitation, all equipment, proprietary
information, documents, books, records, reports, notes, contracts, lists, computer disks (and other
computer-generated files and data), and copies thereof, created on any medium and furnished to,
obtained by, or prepared by you in the course of or incident to your employment, belongs to the
Company and shall be returned to the Company promptly upon any termination of your employment.
(b) Upon your termination for any reason, and as a condition of your receipt of any severance
benefits hereunder, you will promptly resign in writing from all offices and directorships then
held with the Company or any affiliate of the Company.
(c) Following the termination of your employment with the Company for any reason, you shall
fully cooperate with the Company in all matters relating to the winding up of pending work on
behalf of the Company and the orderly transfer of work to other employees of the Company. You
shall also cooperate in the defense of any action brought by any third party against the Company.
9. Limitation of Payments and Benefits. To the extent that any of the payments and
benefits provided for in this Agreement or otherwise payable to you (the “Payments”) constitute
“parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the “Code”), the amount of such Payments shall be either:
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(a) the full amount of the Payments, or
(b) a reduced amount that would result in no portion of the Payments being subject to the
excise tax imposed pursuant to Section 4999 of the Code (the “Excise Tax”),
whichever of the foregoing amounts, taking into account the applicable federal, state and local
income taxes and the Excise Tax, results in the receipt by you, on an after-tax basis, of the
greatest amount of benefit. In the event that any Excise Tax is imposed on the Payments, you will
be fully responsible for the payment of any and all Excise Tax, and the Company will not be
obligated to pay all or any portion of any Excise Tax. If a reduction in severance and other
benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser
extent, reduction will occur in the following order: reduction of cash payments; cancellation of
accelerated vesting of stock options and stock appreciation rights; cancellation of full-value
equity compensation awards; reduction of employee benefits. In the event that acceleration of
vesting of equity award compensation is to be reduced, such acceleration of vesting will be
cancelled in the reverse order of the date of grant of your equity awards.
10. Other Activities. In order to protect the Company’s valuable proprietary
information, you agree that during your employment and for the period, if any, during which
severance payments at your final base salary rate are payable under Paragraph 5(c) or 5(d) above,
you will not, as a compensated or uncompensated officer, director, consultant, advisor, partner,
joint venturer, investor, independent contractor, employee or otherwise, provide any labor,
services, advice or assistance to any entity or its successor involved in the design, manufacture,
distribution (directly or indirectly), or integration of any digital microwave products
substantially similar to current Company products in form, fit, or function and used in terrestrial
microwave point-to-point telecommunications networks anywhere in the world. You acknowledge and
agree that the restrictions contained in the preceding sentence are reasonable and necessary, as
there is a significant risk that your provision of labor, services, advice or assistance to any of
those competitors could result in the disclosure of the Company’s proprietary information. You
further acknowledge and agree that the restrictions contained in this paragraph will not preclude
you from engaging in any trade, business or profession that you are qualified to engage in. In the
event of your breach of this Paragraph, the Company shall not be obligated to provide you with any
further severance payments or benefits subsequent to such breach.
11. Attorneys’ Fees. The Company will reimburse your reasonable attorneys’ fees (up
to $7,500) in connection with the negotiation, preparation and execution of this Agreement with the
Company within thirty (30) days after your start date, subject to the Company’s expense
reimbursement policies and procedures.
12. Dispute Resolution. The parties agree that any suit, action, or proceeding
arising out of or relating to this Agreement, the parties’ employment relationship, or the
termination of that relationship for any reason, shall be brought in the United States District
Court for the Northern District of California (or should such court lack jurisdiction to hear such
action, suit or proceeding, in a California state court in the County of Santa Xxxxx and that the
parties shall submit to the jurisdiction of such court. The parties irrevocably waive, to the
fullest extent permitted by law, any objection they may have to the laying of venue for any such
suit, action or proceeding brought in such court. If any one or more provisions of this Paragraph
12 shall for
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any reason be held invalid or unenforceable, it is the specific intent of the parties that
such provisions shall be modified to the minimum extent necessary to make it or its application
valid and enforceable.
13. Compliance with Section 409A of the Internal Revenue Code. This Agreement is
intended to comply with, or otherwise be exempt from Section 409A of the Code and the rules and
regulations promulgated thereunder (collectively, “Section 409A”). However, the Company
has not made and is making no representation to you relating to the tax treatment of any payment
pursuant to this Agreement under Section 409A and the corresponding provisions of any applicable
State income tax laws.
Notwithstanding anything to the contrary in this Agreement, any payments or benefits due
hereunder upon a termination of employment which are a “deferral of compensation” within the
meaning of Section 409A shall only be payable or provided to you upon a “separation from service”
as defined for purposes of Section 409A. In addition, if you are a “specified employee” as
determined pursuant to Section 409A as of the date of your separation from service, as so defined,
and if any payments or entitlements provided for in this Agreement constitute a “deferral of
compensation” within the meaning of Section 409A and cannot be paid or provided in the manner
provided herein without subjecting you to additional tax, interest or penalties under Section 409A,
then any such payment or entitlement which is otherwise payable during the first six months
following your separation from service shall be paid or provided to you in a lump sum on the
earlier of (i) the first business day of the seventh calendar month immediately following the month
in which your separation from service occurs or (ii) the date of your death. To the extent
required to satisfy the provisions of the foregoing sentence with respect to any benefit to be
provided in-kind, the Company shall xxxx you, and you shall promptly pay, the value for tax
purposes of any such benefit and the Company shall therefore promptly refund the amount so paid by
you as soon as allowed by the foregoing sentence.
For purposes of Section 409A, the right to a series of installment payments under this
Agreement shall be treated as a right to a series of separate payments. With respect to any
reimbursement of your expenses, or any provision of in-kind benefits to you, as specified under
this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to
the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind
benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or
the amount of in-kind benefits provided in any other taxable year, except for any medical
reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b)
of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of
the year after the year in which such expense was incurred; and (3) the right to reimbursement or
in-kind benefits shall not be subject to liquidation or exchange for another benefit.
14. Severability. If any provision of this Agreement is deemed invalid, illegal or
unenforceable, such provision shall be modified so as to make it valid, legal and enforceable, and
the validity, legality and enforceability of the remaining provisions of this Agreement shall not
in any way be affected.
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15. Applicable Withholding. All salary, bonus, severance and other payments
identified in this Agreement are subject to applicable withholding by the Company.
16. Assignment. In view of the personal nature of the services to be performed under
this Agreement by you, you cannot assign or transfer any of your obligations under this Agreement.
This Agreement will be binding upon and inure to the benefit of (a) your heirs, executors and legal
representatives upon your death and (b) any successor of the Company. Any such successor of the
Company will be deemed substituted for the Company under the terms of this Agreement for all
purposes. For this purpose, “successor” means any person, firm, corporation or other business
entity which at any time, whether by purchase, merger or otherwise, comes to own all or
substantially all of the assets or business of the Company.
17. Entire Agreement. This Agreement and the agreements referred to above constitute
the entire agreement between you and the Company regarding the terms and conditions of your
employment, and they supersede all prior negotiations, representations or agreements between you
and the Company regarding your employment, whether written or oral. This Agreement sets forth our
entire agreement regarding the Company’s obligation to provide you with severance benefits upon any
termination of your employment, and you shall not be entitled to receive any other severance
benefits from the Company pursuant to any Company severance plan, policy or practice.
18. Governing Law. This Agreement shall be governed by and construed in accordance
with the law of the State of California.
19. Modification. This Agreement may only be modified or amended by a supplemental
written agreement signed by you and an authorized representative of the Board.
Xxx, we look forward to having you join us at Xxxxxx Stratex Networks, Inc. Please sign and
date this letter on the spaces provided below to acknowledge your acceptance of the terms of this
Agreement.
Sincerely,
Xxxxxx Stratex Networks, Inc.
By:
|
/s/ Xxxxxx X. Xxxxx | |||
| President and Chief Executive Officer |
I agree to and accept employment with Xxxxxx Stratex Networks, Inc. on the terms and
conditions set forth in this Agreement.
Date:
|
April 18 | , 2009 | /s/ Xxxxxx X. Xxxxxx III | |||
| Xxxxxx X. Xxxxxx III |
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