EXHIBIT 10.13
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the "Agreement") is effective as of
May 3, 2002 (the "Effective Date"), by and between Xxxxx X. Xxxxxxxx
("Employee") and Repeater Technologies, Inc. (the "Company"). Certain
capitalized terms used in the Agreement are defined in Section 4 below.
WHEREAS, the Company and Employee entered into an offer letter
employment agreement dated January 1, 2001, a copy of which is attached hereto
as Exhibit A; and
WHEREAS, the Company and Employee entered into an Employment,
Confidential Information And Invention Assignment Agreement dated January 1,
2001, a copy of which is attached hereto as Exhibit B (the "Confidential
Information Agreement" and together with the offer letter collectively referred
to as the "Employment Agreement"); and
WHEREAS, the Company and Employee desire to amend the Employment
Agreement to provide Employee with certain benefits in the event of a Change of
Control of the Company and in the event that Employee terminates his employment
with the Company for Good Reason or the Company terminates Employee's employment
without Cause, within five (5) years after the Effective Date and within twelve
(12) months after a Change of Control of the Company;
THEREFORE, in consideration of the mutual covenants herein contained,
and in consideration of the continuing employment of Employee by the Company,
the parties agree that the Employment Agreement is amended by this Agreement as
follows:
1. At-Will Employment. Nothing in this Agreement alters the at-will
employment relationship between Employee and the Company, meaning that Employee
may terminate employment with the Company for any reason and at any time, simply
by notice, and the Company may terminate Employee's employment with the Company
at any time, with or without Cause or advance notice. Upon termination of
employment, Employee will not be entitled to any payments, benefits,
compensation or severance, except as expressly provided by this Agreement.
2. Stock Options. In the event of a Change of Control, all shares of
stock subject to Employee's Options shall immediately become fully vested,
provided that Employee is employed by the Company on the date of such Change of
Control.
3. Termination of Employment. If the Company terminates Employee's
employment without Cause or if Employee terminates his employment for Good
Reason at any time within five (5) years after the Effective Date and within
twelve (12) months after a Change of Control: then (i) the Company shall make
severance payments to Employee in the form of continuation of Employee's Base
Compensation in effect as of the date of termination of Employee's employment
with Company (the "Termination Date") for six (6) months following the
Termination Date (the "Severance Period"), less standard payroll deductions and
withholdings (the "Severance Payments"); (ii) if Employee elects to continue
health insurance
1.
benefits as provided under the federal COBRA law after the Termination Date, the
Company will pay Employee's COBRA premiums during the Severance Period, and the
Company will continue to provide to Employee during the Severance Period other
insurance benefits that the Company provided to Employee immediately prior to
the Termination Date, provided that Employee continues to be eligible to receive
such benefits under the terms of the applicable benefits plans (the "Insurance
Benefits"); and (iii) Employee's Options will become exercisable for a period of
two hundred seventy (270) days after the Termination Date (the "Extended
Exercise Period") As a precondition of receiving the Severance Payments, the
Insurance Benefits and the Extended Exercise Period, Employee must sign a
general release of claims in a form acceptable to the Company.
4. Definition of Terms. The following terms referred to in this
Agreement shall have the following meanings:
(a) Base Compensation. The base salary of Employee in effect as
of the Termination Date is referred to in this Agreement as "Base Compensation."
(b) Cause. "Cause" shall mean (i) Employee's willful failure to
perform any reasonable assigned duties for the Company after a written demand
for performance is delivered to Employee by the Company's Chief Executive
Officer or the Board of Directors of the Company ("Board"), which demand
specifically identifies the manner in which the Board believes that Employee has
not performed his duties, and provides a reasonable opportunity to cure such
failure; (ii) Employee's willful conduct that is demonstrably injurious to the
Company, monetarily or otherwise; (iii) Employee's Disability, provided that the
Company has given Employee written notice at least 30 days in advance of the
Termination Date; or (iv) Employee's death. For purposes of this Section 4(b),
an act or failure to act by Employee shall be deemed "willful" when done, or
omitted to be done, by Employee not in good faith and without reasonable belief
that his action or omission was in the best interest of the Company.
(c) 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)
(the "Exchange Act") becomes the "BENEFICIAL OWNER" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing more than fifty percent (50%) of the total voting power represented
by the Company's then outstanding voting securities; (ii) a merger or
consolidation of the Company with any other corporation which results in the
voting securities of the Company outstanding immediately prior thereto
representing (either by remaining outstanding or by being converted into voting
securities of the surviving entity) less than fifty percent (50%) of the total
voting power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation; or
(iii) the sale or disposition by the Company of all or substantially all of the
Company's assets.
(d) Disability. "Disability" shall mean that Employee is unable
to perform one or more of the essential functions of his job for a period of at
least 90 continuous days, as the result of his incapacity due to physical or
mental impairment.
2.
(e) Good Reason. The voluntary termination of employment with
the Company by Employee will be considered a termination for "Good Reason" if
Employee resigns his employment because any of the following occur without
Employee's consent: (i) the assignment to the Employee of any duties, or
limitation of Employee's responsibilities, resulting in a material diminution or
adverse change of Employee's position or responsibilities, taken as a whole;
provided, however, that a change in job position (including a change in title),
shall not be deemed by itself to constitute "Good Reason" for termination of
employment with the Company; (ii) a substantial reduction by the Company of the
Employee's Base Compensation, except to the extent the base salaries of other
executive officers of the Company are accordingly reduced; (iii) a failure by
the Company to pay Employee any material portion of Employee's earned
compensation (including bonus compensation, if any, with respect to the actual
amount of bonus compensation earned by Employee); (iv) a failure to pay to
Employee any substantial portion of an installment of deferred compensation
under any deferred compensation program of the Company, within seven days of the
date such compensation is due, provided that the Employee has delivered written
notice to the Company and the Company has had seven (7) days to cure such
failure after delivery of notice; (v) a material reduction by the Company in the
kind or level of employee benefits to which Employee is entitled immediately
prior to such reduction with the result that Employee's overall benefits package
is significantly reduced; (vi) the failure by the Company to continue in effect
any bonus or other compensation plan in which Employee is eligible to
participate which is material to Employee's total compensation, unless an
equitable arrangement has been made providing substantially equivalent benefits
on a basis not materially less favorable (both in terms of the amount of
benefits provided and the level of Employee's participation relative to other
participants); or (vii) the relocation of Employee's principal place of
employment to a facility or a location more than 50 miles from Employee's prior
principal place of employment.
(f) Options. "Options" shall mean options to purchase 475,000
shares of Common Stock of the Company granted to Employee on December 28, 2001
under the Company's 2000 Equity Incentive Plan and 150,000 shares of Common
Stock of the Company granted to Employee on April 15, 2002 under the Company's
Key Executives Stock Option Plan, as well as any additional options granted to
Employee by the Company at any time after the date of this Agreement and shall
include any options assumed or substituted by a third party in connection with a
Change of Control of the Company.
5. Limitation on Payments. In the event that any benefits or payments
received or to be received by Employee pursuant to this Agreement ("Payment")
would (i) constitute a "parachute payment" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or
successor provision to 280G and (ii) but for this Section 5, be subject to the
excise tax imposed by Section 4999 of the Code or any similar or successor
provision to Section 4999 (the "Excise Tax"), then such Payment shall be reduced
to the largest amount which would not result in any portion of the Payment being
subject to the Excise Tax (the "Reduced Amount"). If a reduction in the Payment
is necessary so that the Payment equals the Reduced Amount, reduction shall
occur in the following order unless Employee elects in writing a different order
(provided, however, that such election shall be subject to Company approval if
made on or after the date on which the event that triggers the Payment occurs):
reduction of cash payments; cancellation of accelerated vesting of stock awards;
reduction of employee benefits. In the event that acceleration of vesting of
stock award
3.
compensation is to be reduced, such acceleration of vesting shall be cancelled
in the reverse order of the date of grant of Employee's stock awards unless
Employee elects in writing a different order for cancellation.
The accounting firm engaged by the Company for general audit purposes as
of the day prior to the effective date of the Change of Control shall perform
the foregoing calculations. If the accounting firm so engaged by the Company is
serving as accountant or auditor for the individual, entity or group effecting
the Change of Control, the Company shall appoint a nationally recognized
accounting firm to make the determinations required hereunder. The Company shall
bear all expenses with respect to the determinations by such accounting firm
required to be made hereunder.
The accounting firm engaged to make the determinations hereunder shall
provide its calculations, together with detailed supporting documentation, to
the Company and Employee within fifteen (15) calendar days after the date on
which Employee's right to a Payment is triggered (if requested at that time by
the Company or Employee) or such other time as requested by the Company or
Employee. If the accounting firm determines that no Excise Tax is payable with
respect to a Payment, either before or after the application of the Reduced
Amount, it shall furnish the Company and Employee with an opinion reasonably
acceptable to Employee that no Excise Tax will be imposed with respect to such
Payment. Any good faith determinations of the accounting firm made hereunder
shall be final, binding and conclusive upon the Company and Employee.
6. Proprietary Information Obligations. Employee agrees to execute and
abide by the Company's Employee Proprietary Information and Inventions Agreement
(the "Proprietary Information Agreement"), attached hereto as Exhibit C and
incorporated herein as part of this Agreement.
7. Successors.
(a) Company's Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business,
equity securities 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 of
this Agreement, the term "Company" shall include any successor to the Company's
business, equity securities and/or assets which executes and delivers the
assumption agreement described in this subsection (a) or which becomes bound by
the terms of this Agreement by operation of law.
(b) Employee's Successors. The terms of this Agreement and all
rights of Employee hereunder shall inure to the benefit of, and be enforceable
by, Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
4.
8. 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 when mailed by U.S. registered or certified
mail, return receipt requested and postage prepaid. In the case of Employee,
mailed notices shall be addressed to him at the home address listed on the
Company's payroll. 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.
(b) Notice of Termination. Any termination of Employee's
employment by the Company for Cause, or by Employee for Good Reason, shall be
communicated by a notice of termination to the other party hereto given in
accordance with this Section 8. 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.
9. Arbitration and Equitable Relief. To ensure the rapid and economical
resolution of disputes that may arise in connection with Employee's employment
with the Company, Employee and the Company agree that any and all disputes,
claims, or causes of action, in law or equity, arising from or relating to the
enforcement, breach, performance, or interpretation of this Agreement,
Employee's employment, or the termination of Employee's employment, except for
any issue or dispute arising under the Proprietary Information Agreement
attached hereto as Exhibit C, shall be resolved, to the fullest extent permitted
by law, by final, binding and confidential arbitration in Santa Xxxxx County,
California, conducted by the American Arbitration Association ("AAA") or its
successor, under the then applicable rules of AAA. Employee acknowledges that by
agreeing to this arbitration procedure, both Employee and the Company waive the
right to resolve any such dispute through a trial by jury or judge or
administrative proceeding. The arbitrator shall: (a) have the authority to
compel adequate discovery for the resolution of the dispute and to award such
relief as would otherwise be permitted by law; and (b) issue a written
arbitration decision including the arbitrator's essential findings and
conclusions and a statement of the award. The arbitrator shall be authorized to
award any or all remedies that Employee or the Company would be entitled to seek
in a court of law. The Company shall pay all AAA's arbitration fees in excess of
those which would be required if the dispute were decided in a court of law.
Nothing in this Agreement is intended to prevent either Employee or the Company
from obtaining injunctive relief in court to prevent irreparable harm pending
the conclusion of any such arbitration. Notwithstanding the foregoing, any issue
or dispute arising under the Proprietary Information Agreement shall be resolved
by court action instead of arbitration.
10. Miscellaneous Provisions.
(a) No Duty to Mitigate. Employee shall not be required to
mitigate the amount of any Payment contemplated by this Agreement (whether by
seeking new employment
5.
or in any other manner), nor shall any such Payment be reduced by any earnings
that Employee 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 Employee and by an authorized officer of the Company
(other than Employee). 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) Entire Agreement. This Agreement, including Exhibits A, B
and C, constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes and merges all prior agreements or
understandings, whether written or oral.
(d) Choice of Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
California, without regard to conflict of laws principles.
(e) Severability. The invalidity or unenforceability of any term
or provision of this Agreement shall not affect the validity or enforceability
of any other term or provision hereof, which shall remain in full force and
effect, and the invalid or unenforceable term or provision will be modified with
a valid or enforceable term or provision that most accurately represents the
parties' intention with respect to the invalid or unenforceable term or
provision.
(f) Employment Taxes. All Payments made pursuant to this
Agreement will be subject to withholding of applicable taxes.
6.
(g) 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.
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
first above written.
COMPANY Repeater Technologies, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: EVP, COO & CFO
EMPLOYEE /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
7.
EXHIBIT A
OFFER LETTER EMPLOYMENT AGREEMENT
[REPEATER TECHNOLOGIES LETTERHEAD]
January 1, 2001
Xxxxx X. Xxxxxxxx
000 X. Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dear Xxxxx:
Repeater Technologies, Inc. is pleased to offer you the regular, exempt
position of President and CEO, reporting to Repeater Technologies' Board of
Directors. Your rate of pay will be $8653.85 bi-weekly ($225,000 annualized).
You will also receive a single-trigger change of control agreement. This
agreement will be offered under separate cover. This offer of employment is
contingent upon your ability to provide documentation regarding your
eligibility to work in the US. Your first day of employment will be January 1,
2001.
You will also be eligible to participate in RTI's stock option program. We will
recommend that you be granted 450,000 shares of Repeater Technologies' Common
Stock at the next board of Director's meeting subject to Board approval. Stock
options vest over a 4-year term.
As a full-time employee you will be eligible to participate in the full suite
of Company benefit programs including medical, dental, life LTD, EAP, Flexible
spending accounts and our 401(k) programs as of the 1st of the month following
your start date, as well as accruing Paid Time Off (PTO) as of your start date
as outlined in your new hire packet.
Consistent with Company practice and policy, all employment relationships are
on an at-will basis. In accordance with Federal Law, all new employees are
required to present evidence of their eligibility to be employed in the United
States. Please return the signed offer letter along with our employment &
confidentiality agreement as soon as possible. Please be prepared to submit all
appropriate documents and new hire forms when you arrive for you new hire
orientation, which will be scheduled within your first week.
[REPEATER TECHNOLOGIES LOGO]
Xxxxx, we look forward to working with you as part of the RTI team.
Sincerely,
/s/ XXX XXXXXXXX
Xxx Xxxxxxxx
Director, Human Resources
cc: Xxx Xxxxxxxx
I have read, understand, and accept the foregoing terms and conditions of my
employment with Repeater Technologies, Inc. I further understand that my
salary, benefits, job title and job duties may change from time to time without
a written modification of this agreement.
Agreed to: /s/ XXXXX X. XXXXXXXX Date: 1.1.01
------------------------ --------
Xxxxx X. Xxxxxxxx
EXHIBIT B
CONFIDENTIAL INFORMATION AGREEMENT
[REPEATER TECHNOLOGIES LOGO]
EMPLOYMENT, CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT
AGREEMENT
As a condition of my employment with Repeater Technologies, Inc., its
subsidiaries, affiliates, successors or assigns (together the "Company") and in
consideration of my employment with the Company and my receipt of the
compensation now and hereafter paid to me by the Company, I agree to the
following:
1. AT-WILL EMPLOYMENT. I understand and acknowledge that my employment
with the Company is for an unspecified duration and constitutes "at-will"
employment. I acknowledge that this employment relationship may be terminated
at any time, with or without good cause or for any or no cause, at the option
either of the Company or myself, with or without notice.
2. CONFIDENTIAL INFORMATION.
(a) COMPANY INFORMATION. I agree at all times during the term of my
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without authorization of the Board of Directors of the Company, any
Confidential Information of the Company. I understand that "CONFIDENTIAL
INFORMATION" means any Company proprietary information, technical data, trade
secrets or know-how, including, but not limited to, research, product plans,
products, services, customers of the Company on whom I called or with whom I
became acquainted during the term of my employment), markets, software,
developments, inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing, finances or other
business information disclosed to me by the Company either directly or
indirectly in writing, orally or by drawings or observation of parts or
equipment. I further understand that Confidential Information does not include
any of the foregoing items which has become publicly known and make generally
available through no wrongful act of mine or of others who were under
confidentiality obligations as to the time or items involved.
(b) FORMER EMPLOYER INFORMATION. I agree that I will not, during my
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) THIRD PARTY INFORMATION. I recognized that the Company has
received and in the future will receive from third parties their confidential
or proprietary information subject to a duty on the Company's part to maintain
the confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
3. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. I have attached hereto
as Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with the Company (collectively referred to as "Prior Inventions"),
which belong to me, which relate to the Company's proposed business, products
or research and development, and which are not assigned to the Company
hereunder, or, if not such list is attached, I represent that there are no such
prior inventions. If in the course of my employment with the company, I
incorporate into a Company product, process or machine a Prior Invention owned
by me or in which I have an interest, the Company is hereby granted and shall
have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to
make, have made, modify, use and sell such Prior Invention as part of or in
connection with such product process or machine.
(b) ASSIGNMENT OF INVENTIONS. I agree that I will promptly
make full written disclosure to the Company, will hold in trust for the sole
right and benefit of the Company, and hereby assign to the Company, or its
designee, all my right, title, and interest in and to any and all inventions,
original works or authorship, developments, concepts, improvements or trade
secrets, whether or not patentable or registrable under copyright or similar
laws, which I may solely or jointly conceive or develop or reduce to practice,
or cause to be conceived or developed or reduce to practice, during the period
of time I am in the employ of the Company (collectively referred to as
"Inventions"), except as provided in Section 3(f) below. I further acknowledge
that all original works of authorship which are made by me (solely or jointly
with others) within the scope of and during the period of my employment with
the Company and which are protectable by copyright are "works made for hire",
as the term is defined in the United States Copyright Act.
(c) INVENTIONS ASSIGNED TO THE UNITED STATES. I agree to assign
to the United States government all my right, title, and interest in and to any
and all Inventions whenever such full title is required to be in the United
States by a contract between the Company and the United States or any of its
agencies.
(d) PATENT AND COPYRIGHT REGISTRATIONS. I agree to assist the
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and
any copyrights, patents, mask work rights or other intellectual property right
relating thereto. I further agree that my obligation to execute or cause to be
executed, when it is in my power to do so, any such instrument or papers shall
continue after the termination of this Agreement. If the Company is unable
because of my mental or physical incapacity or for any other reason to secure
my signature to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering Inventions or original
works or authorship assigned to the Company as above, then I hereby irrevocably
designate and appoint the Company and its duly authorized officers and agents
as my agent an attorney in fact, to act for and in my behalf and stead to
execute and file any such applications and to do all other lawfully
Page 2 of 7
permitted acts to further the prosecution and issuance of letters patent or
copyright registrations thereon with the same legal force and effect as if
executed by me.
(e) EXCEPTION TO ASSIGNMENTS. I understand that the provisions of
this Agreement requiring assignment of Inventions to the Company do not apply
to any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as EXHIBIT B). I will advise the Company
promptly in writing of any inventions that I believe meet the criteria in
California Labor Code Section 2870 and not otherwise disclosed on EXHIBIT A.
4. CONFLICTING EMPLOYMENT. I agree that, during the term of my
employment with the Company, I will not engage in any other employment
occupation, consulting or other business activity directly related to the
business in which the Company is now involved or becomes involved during the
term of my employment, nor will I engage in any other activities that conflict
with my obligations to the Company.
5. RETURNING COMPANY DOCUMENTS. I agree that, at the time of leaving
the employ of the Company, I will deliver to the Company (and will not keep in
my possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, or other documents of
property, or reproductions or any aforementioned items developed by me pursuant
to my employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I agree
to sign and deliver the "TERMINATION CERTIFICATION" which will be presented at
time of termination.
6. NOTIFICATION TO NEW EMPLOYER. In the event that I leave the employ
of the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligation under this Agreement.
7. SOLICITATION OF EMPLOYEES. I agree that for a period of twelve (12)
months immediately following the termination of my relationship with the Company
for any reason, whether with or without cause, I shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
to lease their employment, or take away such employees, or attempt to solicit,
induce, recruit, encourage or take away employees of the Company, either for
myself or for any other person or entity.
8. CONFLICT OF INTEREST GUIDELINES. I agree to diligently adhere to
the Conflict of Interest Guidelines attached as EXHIBIT D hereto.
9. REPRESENTATION. I agree to execute any proper oath or verify any
proper document required to carry out the terms of this agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
10. ARBITRATION AND EQUITABLE RELIEF.
(a) ARBITRATION. Except as provided in Section 10(b) below, I agree
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in Santa Xxxxx County, California, in
accordance with the rules then in effect of the American
Page 3 of 7
Arbitration Association. The arbitrator may grant injunctions or other relief
in such dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
(b) EQUITABLE REMEDIES. I agree that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of
the covenants set forth in Sections 2, 3, and 5, herein. Accordingly, I agree
that if I breach any of such Sections, the Company will have available, in
addition to any other right or remedy available, the right to obtain an
injunction from a court of competent jurisdiction restraining such breach or
threatened breach and to specific performance.
11. GENERAL PROVISIONS.
(a) GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by the laws of the State of California. I hereby expressly
consent to the personal jurisdiction of the state and federal courts located in
California for any lawsuit filed there against me by the Company arising from
or relating to this Agreement.
(b) ENTIRE AGREEMENT. This Agreement sets forth the entire Agreement
and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification or
amendment to this Agreement, nor any waiver of any rights under this Agreement,
will be effective unless in writing signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) SEVERABILITY. If one or more of the provisions in this Agreement
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be
for the benefit of the Company, its successors, and it assigns.
1-1-2001
-------------
/s/ XXXXX XXXXXXXX
-------------------------------
Signature
Xxxxx Xxxxxxxx
-------------------------------
Name of Employee (typed or printed)
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Witness
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Page 4 of 7
EXHIBIT A
LIST OF PRIOR INVENTIONS AND ORIGINAL WORKS OF AUTHORSHIP
IDENTIFYING NUMBER
TITLE DATE OR BRIEF DESCRIPTION
----- ---- --------------------
------------ ---------- --------------------
------------ ---------- --------------------
------------ ---------- --------------------
------------ ---------- --------------------
------------ ---------- --------------------
No inventions or improvements
---
Additional Sheets Attached
---
Signature of Employee:
------------------------
Print Name of Employee:
-----------------------
Date:
---------
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Page 5 of 7
EXHIBIT B
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual demonstrably
anticipate research or development or the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state is unenforceable."
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EXHIBIT C
CONFLICT OF INTEREST GUIDELINES
It is the policy of REPEATER TECHNOLOGIES, INC., to conduct its
affairs in strict compliance with the letter and spirit of the law and to
adhere to the highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are in
conflict, or give the appearance of being in conflict, with these principles
and with the interest of the Company. The following are potentially
compromising situations which must be avoided. Any exceptions must be reported
to the President and written approval for continuation must be obtained.
1. Revealing confidential information to outsiders or misusing
confidential information. Unamortized divulging of information is in violation
of this policy whether or not for personal gain and whether or not harm to the
Company is intended. (The Employment, Confidential Information Invention
Assignment Agreement elaborates on this principle and is a binding agreement.)
2. Accepting or offering substantial gifts, excessive
entertainment, favors or payment which may be deemed to constitute undue
influence or otherwise be improper or embarrassing to the Company.
3. Participating in civic or professional organizations that might
involve divulging confidential information of the Company.
4. Initiating or approving any form of personnel actions affecting
reward or punishment of employees or applicants where there is a family
relationship or is or appears to be a personal or social involvement.
5. Initiating or approving any form of personal or social
harassment of employees.
6. Investing or holding outside directorships in suppliers,
customers or competing companies, including financial speculation, where such
investment or directorship might influence in any manner a decision or course
of action of the Company.
7. Borrowing from or lending to employees, customers or suppliers.
8. Acquiring real estate of interest to the Company.
9. Improperly using or disclosing to the Company any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity with whom obligations or confidentiality exist.
10. Unlawfully discussing prices, costs, customers, sales or markets
with competing companies or their employees.
11. Making any unlawful agreements with distributors with respect
to prices.
12. Improperly using or authorizing the use of any inventions which
are the subject of patent claims of any other person or entity.
13. Engaging in any conduct which is not in the best interest of
the Company.
Each officer, employee and independent contractor must take every
necessary action to ensure compliance with these guidelines and to bring problem
areas to the attention of higher management for review. Violations of this
conflict of interest policy may result in discharge without warning.
Page 7 of 7
EXHIBIT C
PROPRIETARY INFORMATION AGREEMENT
REPEATER TECHNOLOGIES, INC.
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my continued employment by REPEATER TECHNOLOGIES,
INC. (the "COMPANY"), the Company's entering into the Change of Control
Agreement with me dated May 3, 2002, and the compensation now and hereafter paid
to me, I hereby agree as follows:
1. NONDISCLOSURE.
1.1 RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times during
my employment and thereafter, I will hold in strictest confidence and will not
disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain Company's
written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns.
1.2 PROPRIETARY INFORMATION. The term "PROPRIETARY INFORMATION" shall
mean any and all confidential and/or proprietary knowledge, data or information
of the Company. By way of illustration but not limitation, "PROPRIETARY
INFORMATION" includes (a) trade secrets, inventions, mask works, ideas,
processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "INVENTIONS"); and (b)
information regarding plans for research, development, new products, marketing
and selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; and (c) information
regarding the skills and compensation of other employees of the Company.
1.3 Third Party Information. I understand, in addition, that the Company
has received and in the future will receive from third parties confidential or
proprietary information ("THIRD PARTY INFORMATION") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and
will not disclose to anyone (other than Company personnel who need to know such
information in connection with their work for the Company) or use, except in
connection with my work for the Company, Third Party Information unless
expressly authorized by an officer of the Company in writing.
1.4 NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND OTHERS. During
my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person. I will use in the performance of my duties only information
which is generally known and used by persons with training and experience
comparable to my own, which is common knowledge in the industry or otherwise
legally in the public domain, or which is otherwise provided or developed by the
Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 PROPRIETARY RIGHTS. The term "PROPRIETARY RIGHTS" shall mean all
trade secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
2.2 PRIOR INVENTIONS. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth on Exhibit B (Previous Inventions) attached hereto a complete list of
all Inventions that I have, alone or jointly with others, conceived, developed
or reduced to practice or caused to be conceived, developed or reduced to
practice prior to the commencement of my employment with the Company, that I
consider to be my property or the property of third parties and that I wish to
have excluded from the scope of this Agreement (collectively referred to as
"PRIOR INVENTIONS"). If disclosure of any such Prior Invention would cause me to
violate any prior confidentiality agreement, I understand that I am not to list
such Prior
1.
Inventions in Exhibit B but am only to disclose a cursory name for each such
invention, a listing of the party(ies) to whom it belongs and the fact that full
disclosure as to such inventions has not been made for that reason. A space is
provided on Exhibit B for such purpose. If no such disclosure is attached, I
represent that there are no Prior Inventions. If, in the course of my employment
with the Company, I incorporate a Prior Invention into a Company product,
process or machine, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license (with rights to
sublicense through multiple tiers of sublicensees) to make, have made, modify,
use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I
will not incorporate, or permit to be incorporated, Prior Inventions in any
Company Inventions without the Company's prior written consent.
2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4, and 2.6, I hereby
assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as "COMPANY INVENTIONS."
2.4 NONASSIGNABLE INVENTIONS. This Agreement does not apply to an
Invention which qualifies fully as a nonassignable Invention under Section 2870
of the California Labor Code (hereinafter "SECTION 2870"). I have reviewed the
notification on Exhibit A (Limited Exclusion Notification) and agree that my
signature acknowledges receipt of the notification.
2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. At the time of each such disclosure, I will advise the Company in
writing of any Inventions that I believe fully qualify for protection under
Section 2870; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. The Company will keep in
confidence and will not use for any purpose or disclose to third parties without
my consent any confidential information disclosed in writing to the Company
pursuant to this Agreement relating to Inventions that qualify fully for
protection under the provisions of Section 2870. I will preserve the
confidentiality of any Invention that does not fully qualify for protection
under Section 2870.
2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my right,
title and interest in and to any particular Company Invention to a third party,
including without limitation the United States, as directed by the Company.
2.7 WORKS FOR HIRE. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for hire,"
pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in
every proper way to obtain, and from time to time enforce, United States and
foreign Proprietary Rights relating to Company Inventions in any and all
countries. To that end I will execute, verify and deliver such documents and
perform such other acts (including appearances as a witness) as the Company may
reasonably request for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof. In
addition, I will execute, verify and deliver assignments of such Proprietary
Rights to the Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions in any and all
countries shall continue beyond the termination of my employment, but the
Company shall compensate me at a reasonable rate after my termination for the
time actually spent by me at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable effort, to
secure my signature on any document needed in connection with the actions
specified in the preceding paragraph, I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and attorney
in fact, which appointment is coupled with an interest, to act for and in my
behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive and
quitclaim to the Company any and all claims, of any nature whatsoever, which I
now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
2.
3. RECORDS. I agree to keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by
the Company) of all Proprietary Information developed by me and all Inventions
made by me during the period of my employment at the Company, which records
shall be available to and remain the sole property of the Company at all times.
4. ADDITIONAL ACTIVITIES. I agree that during the period of my employment by the
Company I will not, without the Company's express written consent, engage in any
employment or business activity which is competitive with, or would otherwise
conflict with, my employment by the Company. I agree further that for the period
of my employment by the Company and for one (l) year after the date of
termination of my employment by the Company I will not, either directly or
through others, solicit or attempt to solicit any employee, independent
contractor or consultant of the company to terminate his or her relationship
with the Company in order to become an employee, consultant or independent
contractor to or for any other person or entity.
5. NO CONFLICTING OBLIGATION. I represent that my performance of all the terms
of this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence information acquired by me in confidence or
in trust prior to my employment by the Company. I have not entered into, and I
agree I will not enter into, any agreement either written or oral in conflict
herewith.
6. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I will
deliver to the Company any and all drawings, notes, memoranda, specifications,
devices, formulas, and documents, together with all copies thereof, and any
other material containing or disclosing any Company Inventions, Third Party
Information or Proprietary Information of the Company. I further agree that any
property situated on the Company's premises and owned by the Company, including
disks and other storage media, filing cabinets or other work areas, is subject
to inspection by Company personnel at any time with or without notice. Prior to
leaving, I will cooperate with the Company in completing and signing the
Company's termination statement.
7. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and unique and
because I may have access to and become acquainted with the Proprietary
Information of the Company, the Company shall have the right to enforce this
Agreement and any of its provisions by injunction, specific performance or other
equitable relief, without bond and without prejudice to any other rights and
remedies that the Company may have for a breach of this Agreement.
8. NOTICES. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address as the
party shall specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or if sent by certified or registered mail,
three (3) days after the date of mailing.
9. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of the
Company, I hereby consent to the notification of my new employer of my rights
and obligations under this Agreement.
10. GENERAL PROVISIONS.
10.1 GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by and construed according to the laws of the State of
California, as such laws are applied to agreements entered into and to be
performed entirely within California between California residents. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in Santa Xxxxx County, California for any lawsuit filed there against me
by Company arising from or related to this Agreement.
10.2 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, it shall be construed
by limiting and reducing it, so as to be enforceable to the extent compatible
with the applicable law as it shall then appear.
10.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
10.4 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
10.5 WAIVER. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be
3.
construed as a waiver of any other right. The Company shall not be required to
give notice to enforce strict adherence to all terms of this Agreement.
10.6 ENTIRE AGREEMENT. The obligations pursuant to Sections 1 and 2
(except for Section 2.7) of this Agreement shall apply to any time during which
I was previously engaged, or am in the future engaged, by the Company as a
consultant if no other agreement governs nondisclosure and assignment of
inventions during such period. This Agreement is the final, complete and
exclusive agreement of the parties with respect to the subject matter hereof and
supersedes and merges any and all prior discussions and agreements between us,
including (without limitation) the Employment, Confidential Information and
Invention Assignment Agreement between me and the Company, dated January 1,
2001. No modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, will be effective unless in writing and signed by
the party to be charged. Any subsequent change or changes in my duties, salary
or compensation will not affect the validity or scope of this Agreement.
This Agreement shall be effective as of the first day of my employment
with the Company, namely: January 1, 2001.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT B TO THIS AGREEMENT.
Dated: 5/6/02
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/s/ Xxxxx X. Xxxxxxxx
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(SIGNATURE)
President and Chief Executive Officer
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(PRINTED NAME)
ACCEPTED AND AGREED TO:
REPEATER TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: EVP, COO & CFO
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0000 Xxxxx Xxx.
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(Address)
Xxxxxxxxx, XX 00000
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Dated: 5/7/02
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4.
EXHIBIT A
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the California
Labor Code that the foregoing Agreement between you and Repeater Technologies,
Inc. (the "Company") does not require you to assign or offer to assign to the
Company any invention that you developed entirely on your own time without using
the Company's equipment, supplies, facilities or trade secret information except
for those inventions that either:
1. Relate at the time of conception or reduction to practice of the
invention to the Company's business, or actual or demonstrably anticipated
research or development of the Company; or
2. Result from any work performed by you for the Company.
To the extent a provision in the foregoing Agreement purports to require
you to assign an invention otherwise excluded from the preceding paragraph, the
provision is against the public policy of this state and is unenforceable.
This limited exclusion does not apply to any patent or invention covered
by a contract between the Company and the United States or any of its agencies
requiring full title to such patent or invention to be in the United States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Date: 5/6/02
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WITNESSED BY:
/s/ Xxxxxxx X. Xxxxxxxx
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A-1.
EXHIBIT B
TO: REPEATER TECHNOLOGIES, INC.
FROM: XXXXX X. XXXXXXXX
DATE: 5/6/02
SUBJECT: PREVIOUS INVENTIONS
1. Except as listed in Section 2 below, the following is a complete list of all
inventions or improvements relevant to the subject matter of my employment by
Repeater Technologies, Inc. (the "COMPANY") that have been made or conceived or
first reduced to practice by me alone or jointly with others prior to my
engagement by the Company:
[X] No inventions or improvements.
[ ] See below:
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[ ] Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the disclosure
under Section 1 above with respect to inventions or improvements generally
listed below, the proprietary rights and duty of confidentiality with respect to
which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(ies) RELATIONSHIP
1.
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2.
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3.
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[ ] Additional sheets attached.
B-1.
