EXHIBIT 10.41b
ADDENDUM TO
XXXXXX X. XXXXXX
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDMENT TO MANAGEMENT RETENTION AGREEMENT
SEPTEMBER 30, 2003
This Agreement is entered into as of September 30, 2003 by and between
PCTEL, Inc. (the "Company") and Xxxxxx X. Xxxxxx ("Executive").
The purpose of this Agreement is to serve as an addendum to Executive's
Amended and Restated Employment Agreement effective as of July 1, 2003 (the
"Employment Agreement"), and as an amendment to Executive's Management Retention
Agreement effective as of November 15, 2001 (the "Management Retention
Agreement").
1. Addendum to Employment Agreement. The following provisions shall be an
addendum to and deemed to be a part of the Employment Agreement:
(a) Section 280G. The benefits to be accorded to Executive under
Section 8(a) of the Employment Agreement, entitled "Severance;
Termination Following a Change of Control," shall be subject to the
following:
In the event that the severance and other benefits provided for in the
Employment Agreement or otherwise payable to Executive (i) constitute
"parachute payments" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code") and (ii) but for this
Section, would be subject to the excise tax imposed by Section 4999 of
the code, then Executive's severance benefits under the Employment
Agreement shall be payable either
(i) in full, or
(ii) as to such lesser amount which would result in no portion of
such severance benefits being subject to excise tax under
Section 4999 of the Code,
whichever of the foregoing amounts, taking into account the applicable
federal, state and local income taxes and the excise tax imposed by
Section 4999, results in the receipt by Executive, on an after-tax
basis, of the greatest amount of severance benefits under the
Employment Agreement, notwithstanding that all or some portion of such
severance benefits may be taxable under Section 4999 of the Code.
Unless the Company and Executive otherwise agree in writing, any
determination required under this Section shall be made in writing by
the Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon Executive and the
Company for all purposes. For purposes of making the calculations
required by this Section, the Accountants may make reasonable
assumptions and approximations concerning applicable taxes and may rely
on reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Code. The Company and Executive shall
furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination
under this Section. The Company shall bear all costs the Accountants
may reasonably incur in connection with any calculations contemplated
by this Section.
(b) Retirement Health Care Benefit. The Company and Executive agree as
follows with respect to the provision of health care benefits to
Executive and members of his immediate family, in accordance with
Section 8(d) of the Employment Agreement, entitled "Severance; Employee
Benefits Post-Retirement."
(i) The Company will pay for the premiums for comprehensive health
care coverage, consistent with the coverage provided to other
executives of the Company in accordance with the Company's
established policies, for the benefit of Executive and his
immediate family as long as Executive remains employed by the
Company.
(ii) At Executive's election at any time prior to July 1, 2008
during Executive's employment, but subject to the insurability
of Executive and each member of Executive's immediate family,
Executive may require the Company to obtain, at the Company's
expense, an individual family policy for the benefit of
Executive and his immediate family (the "Individual Policy").
(In the event the Individual Policy is not available due to
insurability issues, as an alternative the Company will seek
to obtain an Individual Policy for those individuals who are
insurable, and a Blue CHIP policy for any individuals who are
not insurable. Such alternative arrangement shall be included
within the definition of "Individual Policy.")
(iii) Subject to Executive's continuing employment, the Company will
continue to provide health care coverage for Executive and his
immediate family, and to process health claims, under the
Company's existing group health care plan for a period of one
year from the date of obtaining the Individual Policy. At that
time, Executive agrees to decline further coverage under the
existing group policy.
(iv) Subject to Executive's completion of the five-year term of the
Employment Agreement, Executive will be responsible for
continued payment of the premiums under the Individual Policy
for the period prior to Executive's attaining the age of 62.
At that time, the Company will be obligated to resume payments
of the premiums required to maintain the Individual Policy in
effect until Executive and Executive's wife have reached the
age of 65. For purposes of determining the Company's
obligation to pay the premiums necessary to maintain the
Individual Policy, Executive will be deemed to have fulfilled
the five-year term of the Employment Agreement if prior to the
expiration of such term his employment with the Company shall
have been terminated as a result of death or Disability or
terminated without Cause.
(v) Upon Executive's and Executive's wife's reaching the age of
65, the Company's obligation to pay the premiums necessary to
maintain the Individual Policy shall terminate, and the
Company shall thereafter pay the premiums necessary to
maintain a Medicare supplemental policy for the remainder of
the lives of Executive and his wife.
(vi) Executive and the Company agree that the Company shall be
permitted to substitute alternative retirement health care
arrangements for the benefit of Executive and his immediate
family to the extent that any alternative
arrangement shall provide benefits that are, in the aggregate,
not less beneficial than those set forth above.
2. Amendment to Management Retention Agreement.
(a) Non-Competition. Section 7 of the Management Retention Agreement,
entitled "Covenant Not to Compete," is hereby superseded by Section 10
of the Employment Agreement, entitled "Conditional Nature of Severance
Payments."
(b) Non-Solicitation. Section 5 of the Management Retention Agreement,
entitled "Non-Solicitation," is hereby superseded by Section 10 of the
Employment Agreement, entitled "Conditional Nature of Severance
Payments."
(c) Employment Term. The first sentence of Section 2 of the Management
Retention Agreement, entitled "At-Will Employment," is hereby
superseded by Section 3 of the Employment Agreement, entitled
"Employment Term."
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:
PCTEL, INC.
By: /s/ Xxxx Xxxxxx Date: 9-30-03
-------------------------------- --------------------------
Name: Xxxx Xxxxxx
------------------------------
Title: Chief Operating Officer and
-----------------------------
Chief Financial Officer
-----------------------------
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx Date: September 30, 2003
----------------------------------- --------------------------
Xxxxxx X. Xxxxxx
