SOMERA COMMUNICATIONS, INC. JEFF MILLER EMPLOYMENT AGREEMENT
Exhibit 10.7
XXXXXX COMMUNICATIONS, INC.
XXXX XXXXXX
EMPLOYMENT AGREEMENT
This Agreement is made by and between Xxxxxx Communications, Inc. (the
“Company”) and Xxxx Xxxxxx (“Executive”) as of July 1, 2002.
1. The Executive and the Company (previously known as Xxxxxx Communications, LLC) have previously entered into that certain
employment agreement dated May 6th, 1999 (the “Prior Agreement”);
2. The Executive and the Company have agreed to certain new and/or modified terms and conditions with respect to the
Executive’s continued employment with the Company and wish to enter into this Agreement (i) to reflect such new and/or modified mutually agreed to terms and conditions and (ii) which as of the Commencement Date, as defined in Paragraph 1 below,
shall supersede the Prior Agreement in its entirety.
1. Duties and Scope of Employment.
(a) Positions; Commencement Date; Duties. Executive’s employment with the Company pursuant to this Agreement shall commence on July 1, 2002 (the
“Commencement Date”). As of the Commencement Date, the Company shall employ the Executive as the Executive Vice President, Strategic Alliances. The primary responsibility of such position shall be the development, and implementation of a
strategy and business plan intended to enhance the Company’s revenues, profits and gross margin realized by the Company from original equipment manufacturers of telecommunications equipment, as identified by the Executive and the President and
Chief Executive Officer (the “CEO) from time to time during the Employment Period. The period of Executive’s employment hereunder is referred to herein as the “Employment Term.” During the Employment Term, Executive shall report
to the CEO. It is expressly understood that nothing herein shall preclude the CEO from making organizational, title and reporting changes as the CEO may, in good faith, deem desirable and in the best interests of the Company. The Executive’s
position shall be based in the Company’s Chicago, Illinois location, which, as of the Commencement Date, is intended to be operational within the first sixty (60) days of the Company’s fourth fiscal quarter of 2002.
(b) Obligations. During the Employment Term, Executive shall devote
his full business efforts and time to the Company. Executive agrees, during the Employment Term, (i) not to actively engage in any other employment, occupation or consulting activity for any direct or indirect remuneration, or (ii) not to engage as
a non-executive member of a board of directors of any company, without the prior approval of the CEO; provided, however, that Executive may serve in any capacity with any civic, educational or charitable organization without the approval of the CEO.
2. Employee Benefits.
(a) General. During the Employment Term, Executive shall be eligible to
participate in the employee benefit plans and insurance maintained by the Company that are applicable to other senior management to the full extent provided for under those plans. As necessary, and as requested by the Executive, and in consideration
of the fact this Agreement is one of continued employment from time to time the Company shall provide Executive with information regarding such plans and insurance. The Company reserves the right to cancel or change its benefits plans and programs
it offers to its employees at any time.
(b) Relocation Expense
Reimbursement. The Company will reimburse Executive for the following reasonable costs related to the Executive’s relocation to the Chicago, Illinois metropolitan area.:
(i) Two “house-hunting” trips to Chicago, Illinois, including airfare, hotel accommodations and
related costs for the Executive and his immediate family members per trip.
(ii) Transportation expenses for up to four trips for the Executive from Chicago to Santa Barbara California after Executive commences in the Chicago office but prior to the final relocation of the Executive to Chicago.
(iii) Any Transaction costs associated with buying Executive’s new residence
(closing costs, inspections, title insurance, brokerage and related fees, etc.).
(iv) Any Transaction costs associated with selling Executive’s old residence (closing costs, inspections, title insurance, brokerage and related fees, etc.).
(v) Moving household furnishings, personal effects and two automobiles (including packing and unpacking of household furnishings and personal
effects).
(vi) Up to six (6) months temporary storage of household furnishings and
personal effects if necessary.
(vii) Transportation (including mileage and/or
airfare), hotel accommodations and related costs for the Executive and his immediate family members for their final move to the Chicago, Illinois metropolitan area.
Executive will be fully grossed-up by the Company for any imputed income required to be recognized with respect to this reimbursement so that the economic
effect to Executive, after taking into account any tax deductions available to Executive, is the same as if this reimbursement was provided to Executive on a non-taxable basis. The Company and the Executive shall reasonably cooperate to determine
the appropriate tax rate to be used for the calculation of such gross-up.
(c) Temporary Living Expenses; Travel. The Company will pay for Executive’s temporary living costs until the earlier of (i) such time as the Executive permanently relocates to the Chicago
metropolitan area, or (ii) six (6) months from the Commencement Date. Such costs will include out of pocket living expenses such as rent, automotive rental and up to four round trip airfares during such period for the Executive to return to Santa
Barbara, California. The Executive agrees to make all possible efforts to consolidate business travel with trips to Santa Xxxxxxx. Executive will be fully grossed-up by the Company for any income imputed with respect to the payments made by the
Company to Executive, so that the economic effect to Executive, after taking
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into account any tax deductions available to Executive, is the same as if these payments were provided to Executive on a non-taxable basis. The Company and the Executive shall reasonably
cooperate to determine the appropriate tax rate to be used for the calculation of such gross-up.
(d) Relocation Allowance. In connection with the transfer of Executive’s principal place of employment to Chicago, the Company shall provide Executive with a lump sum payment of $55,000
within thirty (30) days of the date Executive commences his relocation efforts to Chicago. The Company and the Executive acknowledge that the relocation loan, as provided for in the Prior Agreement will be repaid and that repayment of certain
amounts under such loan have been, or will be forgiven by the Company. As soon as practicable after January 1, 2003, the Company shall pay to the Executive an amount which shall fully reimburse the Executive for any imputed income required to be
recognized with respect to such forgiveness and such payment so that the economic effect to the Executive, after taking into account tax deductions available to the Executive, is the same as if this payment and such forgiveness was provided to the
Executive on a non-taxable basis . The Company and the Executive shall reasonably cooperate to determine the appropriate tax rate to be used for the calculation of such gross-up.
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For the purposes of this Agreement,
“Cause” is defined as: (i) an act of dishonesty made by Executive in connection with his responsibilities as an employee of the Company, (ii) Executive’s conviction of, or plea of nolo contendere to, a felony, (iii)
Executive’s gross misconduct, or (iv) Executive’s material breach or failure to perform his employment duties as established by the CEO periodically and failure to cure such material breach or failure within thirty (30) days after receipt
of written notice of such material breach or failure from the Company.
For the purposes of this Agreement, “Constructive Termination” is defined as (i)
a material reduction in Executive’s Base Salary or bonus level, or (ii) a significant change in Executive’s job responsibilities such that the Executive is no longer functioning in a Vice President level position as defined by the Company.
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Change of Control Vesting
Acceleration. In the event of a Change of Control, an additional number of shares of the common stock of the Company equal to 25% of Executive’s entire outstanding, unexercised Stock Option as of the Commencement
Date, together with any additional option grants Executive may receive from the Company while employed hereunder, shall become vested and immediately exercisable and any remaining unvested shares subject to the Stock Option, or any additional option
grants, shall be subject to vesting as otherwise provided herein or in the applicable option agreements.
For the purposes of this Agreement, “Change of Control” is defined as:
(1) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company’s then outstanding voting securities;
(2) the consummation of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 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
(3) the consummation of the sale or disposition by the Company of all or substantially all the Company’s assets.
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of any interest in the rights of Executive to receive any form of compensation hereunder shall be null and void.
If to the Company: |
Xxxxxx Communications, INC. 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxx Xxxxxxx, XX 00000 Attn: Chief Executive Officer | |
If to Executive: |
Xxxx Xxxxxx 000 Xxxxxx Xx. Xxxx Xxxxx, XX 00000 |
(a) Except as provided in Section 13(c) below, Executive and the Company agree that any dispute or
controversy arising out of, relating to, or in connection with this Agreement, or the interpretation, validity, construction, performance, breach, or termination thereof shall be settled by arbitration to be held in Chicago, Illinois, in accordance
with the National Rules for the Resolution of Employment Disputes then in effect of the American Arbitration Association (the “Rules”). 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.
(b) The arbitrator shall apply Illinois law to the merits of any dispute or claim, without reference to rules of conflict of law. The arbitration
proceedings shall be governed by federal arbitration law and by the Rules, without reference to state arbitration law. Executive hereby
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expressly consents to the personal jurisdiction of the state and federal courts located in Illinois for any action or proceeding arising from or relating to this Agreement and/or relating to any
arbitration in which the parties are participants.
(c) Executive understands that
nothing in Section 13 modifies Executive’s at-will status. Either the Company or Executive can terminate the employment relationship at any time, with or without cause.
(d) EXECUTIVE HAS READ AND UNDERSTANDS SECTION 13, WHICH DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE
CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EXECUTIVE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED;
BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR
PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION
OF ANY FEDERAL STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE
FAIR LABOR STANDARDS ACT, THE ILLINOIS HUMAN RIGHTS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE SECTION 201, et seq;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
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XXXXXX COMMUNICATIONS, INC. | ||
BY: |
/s/ XXXXX XXXXXXXX | |
TITLE: |
Vice President, Human Resources | |
EXECUTIVE /s/ XXXXXXX X. XXXXXX Xxxx Xxxxxx |
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Exhibit A
EXECUTIVE INCENTIVE PLAN PERFORMANCE CRITERIA