EXHIBIT 10.7
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of May 2, 2000 by and
between Western Multiplex Corporation, a Delaware Company (the "Company") and
Xxxxxxxxx Xxxxxxxxxx (the "Executive").
WHEREAS, the Company considers it essential to its best interests and the
best interests of its stockholders to xxxxxx the continued employment of
Executive by the Company during the term of this Agreement and Executive is
willing to accept and continue Executive's employment on the terms hereinafter
set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment; Executive Representation.
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a. Employment Term. Executive's term of employment under this
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Agreement shall commence on the date hereof and, subject to the terms hereof,
Executive and the Company agree and acknowledge that Executive's employment with
the Company constitutes "at-will" employment and that this Agreement may be
terminated at any time by the Company or Executive; provided, however, that any
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termination of employment by Executive (other than for death or Permanent
Disability) may only be made upon 90 days prior written notice to the Company.
b. Executive Representation. Executive hereby represents to the
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Company that the execution and delivery of this Agreement by Executive and the
Company and the performance by Executive of the Executive's duties hereunder
shall not constitute a breach of, or otherwise contravene, the terms of any
employment agreement or other agreement or policy to which Executive is a party
or otherwise bound.
2. Position.
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a. While employed hereunder, Executive shall serve as the
Company's Vice President of Sales. In such position, Executive shall have such
duties and authority as shall be determined from time to time by the chief
operating officer of the Company (or his designee) (the "COO").
b. While employed hereunder, Executive will devote Executive's
full business time and best efforts to the performance of Executive's duties
hereunder and will not engage in any other business, profession or occupation
for compensation or otherwise which would conflict with the rendition of such
services either directly or indirectly, without the prior written consent of the
COO; provided that nothing herein shall preclude Executive from continuing to
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serve on the board of directors or trustees of any business corporation or any
charitable organization on which he currently serves and which is identified on
Exhibit A hereto
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or, subject to the prior approval of the COO, from accepting appointment to any
additional directorships or trusteeships, provided in each case, and in the
aggregate, that such activities do not interfere with the performance of
Executive's duties hereunder or conflict with Section 8.
3. Base Salary. While employed hereunder, the Company shall pay
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Executive a base salary (the "Base Salary") at the annual rate of $150,000,
payable in regular installments in accordance with the Company's usual payment
practices. Executive shall be entitled to such increases in Executive's Base
Salary, if any, as may be determined from time to time in the sole discretion of
the Board.
4. Commission; Annual Bonus.
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a. Commission. With respect to each calendar year while employed
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hereunder, Executive shall be eligible to earn a sales commission (a
"Commission") at an annual rate of $100,000, based upon Executive's achievement
of certain sales quota, as established by the Board (or a designated committee
thereof). The Commission shall be payable quarterly, annually, or pursuant to
such other schedule as the Board (or its designated committee) may in its
discretion determine, but in no event shall such Commission be payable less
frequently than on an annual basis.
b. Annual Bonus. With respect to each calendar year while employed
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hereunder, Executive shall be eligible to earn an annual bonus award (an "Annual
Bonus") pursuant to an annual incentive plan to be established by the Board.
The Annual Bonus shall be payable in accordance with the terms of such incentive
plan.
5. Employee Benefits. The Company shall provide Executive during
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the term of his employment hereunder with coverage under all employee pension
and welfare benefit programs, plans and practices in accordance with the terms
thereof, which the Company generally makes available to its senior executives.
Executive shall also be entitled to such number of paid vacation and sick leave
in each calendar year as established under the Company's policies as in effect
from time to time, which shall be taken at such times as are consistent with
Executive's responsibilities hereunder.
6. Business Expenses. Executive is authorized to incur reasonable
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expenses in carrying out his duties and responsibilities under this Agreement,
including, without limitation, expenses for travel and similar items related to
such duties and responsibilities. The Company will reimburse Executive for all
such expenses upon presentation by Executive from time to time of appropriately
itemized and approved (consistent with the Company's policy) accounts of such
expenditures.
7. Termination. The Executive's employment hereunder may be
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terminated by either party at any time and for any reason; provided that
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Executive will be required to give the Company at least 90 days advance written
notice of any resignation of Executive's employment. Notwithstanding any other
provision of this Agreement, the provisions of this
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Section 7 shall exclusively govern Executive's rights upon termination of
employment with the Company and its affiliates.
a. By the Company For Cause
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(i) The Executive's employment hereunder may be terminated by the
Company for Cause (as defined below) or upon 90 days prior written notice, by
Executive without Good Reason.
(ii) For purposes of this Agreement, "Cause" shall mean (i) the
Executive's willful and continued failure to perform his or her duties with
respect to the Company or its subsidiaries after demand by his or her superior
for substantial performance is made or delivered, (ii) willful misconduct by the
Executive involving dishonesty or breach of trust in connection with the
Executive's employment, (iii) indictment for any felony or misdemeanor involving
moral turpitude, (iv) any material breach of the Executive's restrictive
covenants as provided in Section 8 of this Agreement, or (v) violation of any
written Company policy.
(iii) If Executive's employment is terminated by the Company for
Cause or by Executive without Good Reason, Executive shall be entitled to
receive:
(A) the Base Salary through the date of termination;
(B) any Annual Bonus and/or Commission earned but unpaid as of
the date of termination for any previously completed calendar year;
(C) reimbursement for any unreimbursed business expenses properly
incurred by Executive in accordance with Company policy prior to the
date of Executive's termination; and
(D) such Employee Benefits, if any, as to which Executive may be
entitled under the employee benefit plans of the Company (the amounts
described in clauses (A) through (D) hereof being referred to as the
"Accrued Rights").
Following such termination of Executive's employment by the Company
for Cause, except as set forth in this Section 7(a), Executive shall have no
further rights to any compensation or any other benefits under this Agreement.
b. Disability or Death.
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(i) The Executive's employment hereunder shall terminate upon
Executive's death and if Executive becomes physically or mentally incapacitated
and is therefore unable for a period of six (6) consecutive months or for an
aggregate of nine (9) months in any twenty-four (24) consecutive month period to
perform Executive's duties (such incapacity is hereinafter referred to as
"Disability"). Any question as to the existence of the Disability of
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Executive as to which Executive and the Company cannot agree shall be determined
in writing by a qualified independent physician mutually acceptable to Executive
and the Company. If Executive and the Company cannot agree as to a qualified
independent physician, each shall appoint such a physician and those two
physicians shall select a third who shall make such determination in writing.
The determination of Disability made in writing to the Company and Executive
shall be final and conclusive for all purposes of the Agreement.
(ii) Upon termination of Executive's employment hereunder for
either Disability or death, Executive or Executive's estate (as the case may be)
shall be entitled to receive:
(A) the Accrued Rights; and
(B) a pro rata portion of any Annual Bonus and/or Commission that
the Executive would have been entitled to receive pursuant to Section
4 hereof in such year based upon the percentage of the calendar year
that shall have elapsed through the date of Executive's termination of
employment, payable when such Annual Bonus and/or Commission would
have otherwise been payable had the Executive's employment not
terminated.
Following Executives termination of employment due to death or
Disability, except as set forth in this Section 7(b), Executive shall have no
further rights to any compensation or any other benefits under this Agreement.
c. By the Company Without Cause or Resignation by Executive for
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Good Reason.
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(i) The Executive's employment hereunder may be terminated by the
Company without Cause or by Executive's resignation for Good Reason.
(ii) For purposes of this Agreement, "Good Reason" shall mean:
(x) a reduction in the Executive's base salary (other than any general salary
reduction affecting at least the majority of salaried employees of the Company),
(y) a material and adverse reduction in the Executive's duties and
responsibilities, or (z) a transfer of the Executive's primary workplace by more
than fifty (50) miles from the current workplace, other than as approved by any
of the senior executives of the Company.
Notwithstanding the foregoing, none of the events described in clauses (x) or
(y) of this Section 7(c)(ii) shall constitute Good Reason unless Executive shall
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have notified the Company in writing describing the events which constitute Good
Reason and then only if the Company shall have failed to cure such event within
thirty (30) days after the Company's receipt of such written notice.
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(iii) If Executive's employment is terminated by the Company
without Cause (other than by reason of death or Disability) or if Executive
resigns for Good Reason, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) the Commission that the Executive would have been entitled to
receive pursuant to Section 4(a) hereof in such year based upon the
percentage of the calendar year that shall have elapsed through the
date of Executive's termination of employment, payable when such
Commission would have otherwise been payable had the Executive's
employment not terminated; and
(C) subject to Executive's continued compliance with the
provisions of Section 8, continued payment of the Base Salary until
twelve (12) months after the date of such termination; provided that
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the aggregate amount described in this clause (B) shall be reduced by
the present value of any other cash severance or termination benefits
payable to Executive under any other plans, programs or arrangements
of the Company or its affiliates.
Following Executive's termination of employment by the Company without
Cause (other than by reason of Executive's death or Disability) or by
Executive's resignation for Good Reason, except as set forth in this Section
7(c), Executive shall have no further rights to any compensation or any other
benefits under this Agreement.
d. Notice of Termination. Any purported termination of
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employment by the Company or by Executive (other than due to Executive's death)
shall be communicated by written Notice of Termination to the other party hereto
in accordance with Section 11(h) hereof. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
8. Nondisclosure of Confidential Information; Non-Competition. (a)
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At any time during or after Executive's employment with the Company, Executive
shall not, without the prior written consent of the Company, use, divulge,
disclose or make accessible to any other person, firm, partnership, corporation
or other entity any Confidential Information (as hereinafter defined) pertaining
to the business of the Company or any of its subsidiaries, except (i) while
employed by the Company, in the business of and for the benefit of the Company,
or (ii) when required to do so by a court of competent jurisdiction, by any
governmental agency having supervisory authority over the business of the
Company, or by any administrative body or legislative body (including a
committee thereof) with jurisdiction to order Executive to divulge, disclose or
make accessible such information. For purposes of this Section 8(a),
"Confidential Information" shall mean non-public information concerning the
financial data, strategic business plans, and other non-public, proprietary and
confidential information of the Company, its subsidiaries, Ripplewood Holdings
L.L.C. or their respective affiliates as in existence as of the
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date of Executive's termination of employment that, in any case, is not
otherwise available to the public (other than by Executive's breach of the terms
hereof).
(b) As Vice President of Sales, Executive will acquire knowledge of
Confidential Information and trade secrets. Executive acknowledges that the
Confidential Information and trade secrets which the Company has provided and
will provide to him could play a significant role were he to directly to
indirectly be engaged in any business in Competition with the Company or its
subsidiaries. During the period of his employment hereunder and for one year
thereafter, Executive agrees that, without the prior written consent of the
Company, (A) he will not, directly or indirectly, either as principal, manager,
agent, consultant, officer, stockholder, partner, investor, lender or employee
or in any other capacity, carry on, be engaged in or have any financial interest
in (other than an ownership position of less than 5 percent in any company whose
shares are publicly traded), any business, which is in Competition (as
hereinafter defined) with the existing business of the Company or its
subsidiaries and (B) he shall not, on his own behalf or on behalf of any person,
firm or company, directly or indirectly, solicit or offer employment to any
person who has been employed by the Company or its subsidiaries at any time
during the 12 months immediately preceding such solicitation to the extent that
Executive would use or inevitably use Confidential Information or trade secrets
or that would otherwise constitute unfair competition.
(c) For purposes of this Section 8, a business shall be deemed to be
in Competition with the Company or its subsidiaries if it is engaged in or has
taken concrete steps toward engaging in the business of research and
development, designing, manufacturing, marketing, distributing, or servicing or
selling components as used in microwave radios, products and equipment, whether
in existence or in development, relating to microwave communications (including
unlicensed spread spectrum radio, licensed microwave radio, wireless ethernet
bridge, and fixed wireless (e.g., wireless local loop, point-to-point, point-to-
multipoint)), as carried on by the Company or its affiliates as of the date of
Executive's termination of employment, in all cities, counties, states and
countries in which the business of the Company or its affiliates is then being
conducted or its products are being sold.
(d) The results and proceeds of Executive's services hereunder,
including, without limitation, any works of authorship resulting from
Executive's services during Executive's employment with the Company and/or any
of the Company's affiliates and any works in progress, will be works-made-for
hire and the Company will be deemed the sole owner throughout the universe of
any and all rights of whatsoever nature therein, whether or not now or hereafter
known, existing, contemplated, recognized or developed, with the right to use
the same in perpetuity in any manner the Company determines in its sole
discretion without any further payment to Executive whatsoever. If, for any
reason, any of such results and proceeds will not legally be a work-for-hire
and/or there are any rights which do not accrue to the Company under the
preceding sentence, then Executive hereby irrevocably assigns and agrees to
assign any and all of Executive's right, title and interest thereto, including,
without limitation, any and all copyrights, patents, trade secrets, trademarks
and/or other rights of whatsoever nature therein, whether or not now or
hereafter known, existing, contemplated, recognized or developed, to the
Company, and the Company will have the right to use the same in perpetuity
throughout the
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universe in any manner the Company determines without any further payment to
Executive whatsoever. Executive will, from time to time as may be requested by
the Company, (i) during the term of Executive's employment without further
consideration, and (ii) thereafter at Executive's then current hourly rate, do
any and all things which the Company may deem useful or desirable to establish
or document the Company's exclusive ownership of any and all rights in any such
results and proceeds, including, without limitation, the execution of
appropriate copyright and/or patent applications or assignments. To the extent
Executive has any rights in the results and proceeds of Executive's services
that cannot be assigned in the manner described above, Executive unconditionally
and irrevocably waives the enforcement of such rights. This subsection is
subject to and will not be deemed to limit, restrict, or constitute any waiver
by the Company of any rights of ownership to which the Company may be entitled
by operation of law by virtue of the Company being Executive's employer. This
Section does not apply to an invention that qualifies as a nonassignable
invention under Section 2870 of the California Labor Code, which applies to any
invention for which no equipment, supplies, facilities or Confidential
Information was used, which does not (i) relate to the business of the Company;
(ii) relate to the Company's actual or demonstrable anticipated research or
development or (iii) result from any work performed by Executive for the
Company. This confirms that Executive has been notified of his rights under
Section 2870 of the California Labor Code.
(d) Executive and the Company agree that this covenant not to compete
is a reasonable covenant under the circumstances, and further agree that if in
the opinion of any court of competent jurisdiction such restraint is not
reasonable in any respect, such court shall have the right, power and authority
to excise or modify such provision or provisions of this covenant as to the
court shall appear not reasonable and to enforce the remainder of the covenant
as so amended. Executive agrees that any breach of the covenants contained in
this Section 8 would irreparably injure the Company. Accordingly, Executive
agrees that the Company may, in addition to pursuing any other remedies it may
have in law or in equity, cease making any payments otherwise required by this
Agreement and obtain an injunction against Executive from any court having
jurisdiction over the matter restraining any further violation of this Agreement
by Executive.
9. Specific Performance. Executive acknowledges and agrees that the
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Company's remedies at law for a breach or threatened breach of any of the
provisions of Section 8 would be inadequate and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond, shall be
entitled to cease making any payments or providing any benefit otherwise
required by this Agreement and obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available.
10. Miscellaneous.
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a. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
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b. Entire Agreement/Amendments. This Agreement contains the
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entire understanding of the parties with respect to the employment of Executive
by the Company. There are no restrictions, agreements, promises, warranties,
covenants or undertakings between the parties with respect to the subject matter
herein other than those expressly set forth herein. This Agreement may not be
altered, modified, or amended except by written instrument signed by the parties
hereto. This Agreement supercedes all prior agreements and understandings
(including verbal agreements) between Executive and the Company and/or its
affiliates regarding the terms and conditions of Executive's employment with the
Company and/or its affiliates.
c. No Waiver. The failure of a party to insist upon strict
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adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
d. Severability. In the event that any one or more of the
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provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
e. Assignment. This Agreement shall not be assignable by
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Executive. This Agreement may be assigned by the Company to a company which is a
successor in interest to substantially all of the business operations of the
Company. Such assignment shall become effective when the Company notifies the
Executive of such assignment or at such later date as may be specified in such
notice. Upon such assignment, the rights and obligations of the Company
hereunder shall become the rights and obligations of such successor company,
provided that any assignee expressly assumes the obligations, rights and
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privileges of this Agreement.
f. Mitigation. Executive shall be required to mitigate the
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amount of any payment provided for pursuant to this Agreement by seeking other
employment, taking into account the provisions of Section 8 of this Agreement.
Anything in this Agreement to the contrary notwithstanding, in the event that
Executive provides services for pay to anyone other than the Company or any of
its affiliates from the date Executive's employment hereunder is terminated
until twelve months thereafter, the amounts paid to Executive during such period
pursuant to this Agreement shall be reduced by the amounts of salary, bonus or
other compensation earned by Executive during such period as a result of
Executive's performing such services (regardless of when such earned amounts are
actually paid to Executive).
g. Successors; Binding Agreement. This Agreement shall inure
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to the benefit of and be binding upon personal or legal representatives,
executors, administrators, successors, heirs, distributes, devises and legatees.
h. Notice. For the purpose of this Agreement, notices and all
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other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt
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requested, postage prepaid, addressed to the respective addresses set forth
below Agreement, or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
If to the Company:
Western Multiplex Corporation
0000 Xxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
If to Executive:
To the most recent address of Executive set forth in the personnel records
of the Company.
i. Withholding Taxes. The Company may withhold from any
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amounts payable under this Agreement such Federal, state and local taxes as may
be required to be withheld pursuant to any applicable law or regulation.
j. Counterparts. This Agreement may be signed in counterparts,
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each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
WESTERN MULTIPLEX CORPORATION
By: /s/ Amir Zoufounoun
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Name: Xxxx Xxxxxxxxx
Title: President
EXECUTIVE:
/s/ Xxxxxxxxx Xxxxxxxxxx
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Xxxxxxxxx Xxxxxxxxxx
0000 Xxxxxxx Xx. # 0000
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Xxxxx Xxxxx, XX 00000
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[Address of Executive]
