EXHIBIT 10.13
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated February 28, 2000 by and
between Western Multiplex Corporation, a Delaware Company (the "Company") and
Xxxx X. Xxxxxx (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 Executive (other than for death or Permanent
Disability) may only be made upon 90 days prior written notice to the Company.
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 Vice
President, International Sales. 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 he 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 $110,250, 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.
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.
5. Employee Benefits. The Company shall provide Executive during the term
of his 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 his 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 Executive will be
required to give the Company at least 90 days advance written notice of any
resignation of Executive's employment. 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.
a. By the Company For Cause
(i) The Executive's employment hereunder may be terminated by the Company
for Cause (as defined below) or upon 90 days prior written notice, by Executive
without Good Reason.
(ii) For purposes of this Agreement, "Cause" shall mean (i) the Executive's
willful and continued failure to perform his or her duties with respect to the
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Company or its subsidiaries after demand by his or her superior for substantial
performance is made or delivered, (ii) willful misconduct by the Executive
involving dishonesty or breach of trust in connection with the Executive's
employment, (iii) indictment for any felony or misdemeanor involving moral
turpitude, (iv) any material breach of the Executive's restrictive covenants as
provided in Section 8 of this Agreement, or (v) violation of any written Company
policy.
(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").
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 and 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:
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(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 Executives 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) The Executive's employment hereunder may be terminated by the Company
without Cause or by Executive's resignation for Good Reason.
(ii) For purposes of this Agreement, "Good Reason" shall mean: (x) a
reduction in the Executive's base salary (other than any general salary
reduction affecting at least the majority of salaried employees of the Company),
(y) a material and adverse reduction in the Executive's duties and
responsibilities, or (z) a transfer of the Executive's primary workplace by more
than fifty (50) miles from the current workplace, other than as approved by any
of the senior executives of the Company.
Notwithstanding the foregoing, none of the events described in clauses (x) or
(y) 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, continued payment of the Base Salary until twelve (12) months
after the date of such termination; provided that the aggregate amount
described in this clause (B) shall be reduced by the present value of any
other cash severance or termination benefits payable to Executive under any
other plans, programs or arrangements of the Company or its affiliates.
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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.
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 Vice President, International Sales, 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 him could play a significant role were he to
directly to indirectly be engaged in any business in Competition with the
Company or its subsidiaries. During the period of his employment hereunder and
for one year thereafter, Executive agrees that, without the prior written
consent of the Company, (A) he 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) he shall not, on his own 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.
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(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 engaged in or has
taken concrete steps toward engaging in the business of research and
development, designing, manufacturing, marketing, distributing, or servicing or
selling components as used in microwave radios, products and equipment, whether
in existence or in development, relating to microwave communications (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 or its affiliates as of the
date of Executive's termination of employment, in all cities, counties, states
and countries in which the business of the Company or its affiliates 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 work
performed by Executive for the Company. This confirms that Executive has been
notified of his rights under Section 2870 of the California Labor Code.
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(d) 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. 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.
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.
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.
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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.
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.
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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/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
EXECUTIVE:
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
[Address of Executive]
