EXHIBIT 10.21
SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE
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This Separation Agreement and General Release ("Agreement") is made and
entered into by and between XXXXX X. XXXXX ("Xxxxx") and POWERWAVE TECHNOLOGIES,
INC., a Delaware corporation (the "Company").
WHEREAS, Xxxxx has served as an Executive Vice President of the Company;
and
WHEREAS, Xxxxx and the Company have mutually agreed upon the terms and
provisions for Xxxxx'x severance and separation from the Company.
NOW THEREFORE, in consideration of the mutual agreements set forth herein
and of good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties do hereby agree as follows:
1. Xxxxx understands and agrees that his employment with the Company will
terminate effective May 2, 1997, and that he has already received in full any
and all salary, wages, commissions, incentives, bonuses, accrued unused
vacation, expense reimbursements (subject to paragraph 5), compensation, and
other benefits to which he is entitled through the date of termination of his
employment.
2. Xxxxx further agrees as follows:
(a) Xxxxx agrees that for a period of one (1) year from May 2, 1997,
the period during which the Company has agreed to make payments to Xxxxx under
Xxxxxxxxx 0, Xxxxx will not, without the prior written consent of the Company,
enter into or engage in any business or perform any service, as an employee,
agent, consultant, or otherwise, in any enterprise, which competes with the
Company, including, without limitation, Spectrian Corporation, Micro Power
Devices, Inc. M/A Com, Inc., Avantek (a division of Hewlett-Packard Company),
Celeritek, JCA, Trontech, or AML Communications (a "Competitive Business"), in
any geographic region in which the Company conducts or proposes to conduct its
business, including without limitation, the United States, the Pacific Rim,
Europe and other areas in the world which have or may have wireless
communication.
(b) Xxxxx recognizes that the provisions contained in Paragraph 2
(i) are reasonably necessary for the Company's protection and realization of the
benefit to the Company of its bargains under this Agreement and that a violation
of Paragraph 2 will cause damage which will be irreparable or impossible to
ascertain, and, accordingly, that the Company shall be entitled to an injunction
or other similar relief in equity from a court of competent jurisdiction to
enforce these restrictions or restrain a violation of Paragraph 2. The right of
the Company to such relief shall be in addition to any other rights it may have,
whether at law or in equity, including the Company's rights under Paragraph 11.
(c) If Xxxxx violates the terms of this Paragraph 2 and the Company
brings legal action for injunctive or other relief, the Company shall not, as a
result of the time involved in obtaining the relief, be deprived of the benefit
of the full term of the covenants provided herein. In the event a court of
competent jurisdiction decides that an action of Xxxxx is considered to be a
violation of this
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Paragraph 2, the covenants shall be deemed to have a duration specified in this
Paragraph 2, to be increased with the time such violation lasted.
3. Simultaneous with the execution of this Agreement, Xxxxx will return to
the Company any and all documents and materials which are the property of the
Company, including but not limited to: (a) all documents relating to any of the
Company's productivity, profitability, contracts, marketing plans, contact
lists, and financial reports, and any and all other confidential and/or
proprietary documents; and (b) all office equipment, computers, and printers.
Xxxxx represents that, other than in the ordinary course of performing his
duties for the Company, he has not and will not deliver, reproduce, or in any
way allow such materials or documents to be delivered or used by any third
person without the specific written consent of the Company.
4. Xxxxx represents to the Company that he is signing this Agreement
voluntarily and with a full understanding of and agreement with its terms for
the purpose of receiving additional pay beyond that normally provided by the
Company's policies and practices.
5. In reliance on Xxxxx'x representations, agreements and releases in
this Agreement, the Company agrees: (a) to continue to pay Xxxxx an amount equal
to his regular annual salary of $125,000 per year for a period of one year
beginning May 2, 1997, such amount to paid in bi-weekly installments, less all
applicable federal and state payroll deductions and withholdings; (b) to pay
Xxxxx an amount equal to his annualized commission amount of $75,000, such
amount to be paid over a one year period beginning May 2, 1997 in bi-weekly
installments, less all applicable federal and state payroll deductions and
withholdings; (c) to pay Xxxxx $37,063.00 on the date of this Agreement and an
amount not less than $0 nor more than $ check #50056 (which amount may in fact
be $0) to be determined by the parties within seven (7) days of the date of this
Agreement as full and final settlement of any and all relocation expenses
incurred by Xxxxx in connection with his initial employment with the Company;
(d) that Xxxxx'x options to purchase Common Stock of the Company (the "Options")
granted to Xxxxx under either of the Company's 1995 Stock Option Plan or its
1996 Stock Incentive Plan (collectively, the "Plans") will vest through May 5,
1997, and that fifty percent (50%) of any unvested Options at May 5, 1997 will
accelerate and become immediately exercisable for a period of ninety (90) days
from May 2, 1997 and that after such ninety (90) day period, unless sooner
exercised by Xxxxx, such Options shall terminate in accordance with the Plans;
(e) other than as set forth in this Paragraph 5, no stock options held by Xxxxx
not vested as of May 5, 1997, shall vest and become exercisable as a result of
this Agreement; (f) that as of May 2, 1997, Xxxxx will no longer be eligible to
participate in the Company's Future Income Program Plan and Trust (i.e., the
401(k) plan); (g) that all contributions Xxxxx has deferred to the Company's
Employee Stock Purchase Plan (the "ESPP") will be returned to him in accordance
with the ESPP and that Xxxxx shall have no right to purchase shares of Common
Stock of the Company under the ESPP; and (h) that Xxxxx'x medical benefits will
continue through May 30, 1997, at which time he may elect to continue such
benefits under COBRA at his own expense.
6. In consideration of the foregoing, Xxxxx agrees to be generally
available to the Chief Executive Officer of the Company until August 1, 1997 to
consult with and provide assistance to the Chief Executive Officer in
transitioning the duties and responsibilities of Xxxxx, pursuing sales leads,
and otherwise, as the Chief Executive Officer may reasonably request. The
Company acknowledges that Xxxxx may be absent from the Southern California area
from time to time.
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7. In exchange for the additional pay and other consideration provided to
Xxxxx in Paragraph 5 and Xxxxx'x agreements set forth in this Agreement, Xxxxx
and the Company agree to waive and release all claims, rights, benefits,
obligations, and causes of action, known and unknown, which either party may
have against the other party or their related entities, and, in the case of the
Company, its officers, directors, shareholders, employees, agents,
representatives, successors, and assigns, regarding any aspect of Xxxxx'x
employment, compensation, or the cessation of Xxxxx'x employment, except for any
such claims related to either party's rights or obligations under this
Agreement.
8. IT IS FURTHER UNDERSTOOD AND AGREED that as a condition of this
Agreement, all rights under Section 1542 of the Civil Code of the State of
California are expressly waived by Xxxxx and the Company. Such Section reads as
follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
Notwithstanding Section 1542, and for the purpose of implementing a full and
complete release and discharge of Xxxxx and the Company, Xxxxx and the Company
expressly acknowledge that this Agreement is intended to include and does
include in its effect, without limitation, all claims which Xxxxx or the Company
does not know or suspect to exist in his or its favor against the other party at
the time of execution hereof, and that this Agreement expressly contemplates the
extinguishment of all such claims.
9. For purposes of the Older Workers Benefit Protection Act, 29 U.S.C.
section 626(F) and to assure that the Agreement bars any claims under the
Federal Age Discrimination in Employment Act, Xxxxx acknowledges: (a) that he
has read this Agreement and understands that it bars all claims, including those
for age discrimination; (b) that the release of claims relating to age
discrimination does not apply to claims based on events that take place after
this Agreement takes effect; (c) that he is receiving consideration that he is
not otherwise entitled to from the Company; (d) that he has been advised in
writing to consult an attorney before signing this Agreement and has done so;
(e) that he has been given at least twenty-one (21) days in which to decide
whether to accept this Agreement insofar as it relates to Age discrimination;
and (f) that the release insofar as it relates to claims of age discrimination
does not take effect until seven days after he has signed it, during which time
he may revoke his acceptance of the Agreement insofar as it relates to claims of
age discrimination.
10. Xxxxx further agrees to keep each and every term of this Agreement
completely confidential and that he will not hereafter disclose the substance or
contents hereof to any person or persons, including but not limited to any past,
present or prospective employees of the Company, but not including Xxxxx'x
attorneys and other advisors or as required by law. Xxxxx also understands and
agrees that he remains bound by the terms of the confidentiality and non-
disclosure agreement he previously signed in connection with his employment by
the Company. The Company agrees to keep each and every term of this Agreement
completely confidential and that it will not hereafter disclose the substance of
contents hereof to any person or persons, except for the Company's attorneys and
other advisors or as required by law.
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11. No provision of this Agreement shall be construed against any party or
his/its counsel merely because that party or his/its counsel drafted the
provision in question. This Agreement will be interpreted in accordance with
the laws of the State of California. All actions or proceedings arising in
connection with this Agreement shall be tried and litigated exclusively in the
state and Federal courts located in the County of Orange, State of California.
In the event of any such action or proceeding, the prevailing party shall be
entitle to receive from the other party reasonable attorneys' fees and costs;
provided, however, a party shall only be deemed a "prevailing party" if it
obtains an actual award of damages or injunctive relief and not as the result of
any settlement of the matter.
12. This Separation Agreement and General Release sets forth the entire
agreement between the parties and supersedes any and all prior agreements,
letters, memoranda or understandings, oral or written, in connection with the
subject matter of this Agreement. Xxxxx agrees that he is not entitled to
receive, and will not claim, any right, benefit, or compensation other than what
is expressly set forth above.
13. This Separation Agreement and General Release may be modified only by
written agreement signed by the party against whom any amendment is to be
enforced and shall be binding upon and inure to the benefit of the parties
hereto and their representatives, heirs, executors, assigns, and successors in
interest.
14. If any provision of this Separation Agreement and General Release is
held by a court of competent jurisdiction to be invalid, void or unenforceable
for any reason, the remaining provisions not so declared shall nevertheless
continue in full force and effect, but shall be construed in a manner so as to
effectuate the intent of this Separation Agreement and General Release as a
whole, notwithstanding such stricken provision or provisions.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
dates set forth opposite their signatures below.
XXXXX XXXXX
DATED: May 2, 1997 /s/ XXXXX XXXXX
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POWERWAVE TECHNOLOGIES, INC.
DATED: May 2, 1997 By: /s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
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