AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) effective as of October 25,
2007, by and between Proxim Wireless Corporation, a Delaware corporation (the
“Company”) and Xxxxx X. Xxxxxxx (the “Executive”).
WHEREAS,
the Company considers it essential to its best interests and the best interests
of its stockholders for the Company to employ Executive and Executive is willing
to accept employment on the terms hereinafter set forth in this
Agreement;
WHEREAS,
this Agreement amends, restates, supersedes, and replaces in its entirety the
employment agreement, dated as of December 19, 2000 (the “Original Employment
Agreement”), between the Company and the Executive;
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.
a. Employment
Term. Executive’s term of employment under this 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, subject to the terms of Section 7 of this
Agreement.
b. Executive
Representation. Executive hereby represents to the 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 statute, law, regulation, or of any
employment agreement or other agreement or policy to which Executive is a party
or otherwise bound.
2. Position.
a. While
employed hereunder, Executive shall serve as the Vice President, Corporate
Affairs and General Counsel. In such position, Executive shall have
such duties and authority as shall be determined from time to time by the Chief
Executive Officer (“CEO”).
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 rendering of such services either
directly or indirectly, without the prior written consent of the
CEO.
3. Base
Salary. While employed hereunder, the Company shall pay Executive a base
salary (the “Base Salary”) at the annual rate of $194,250, 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 of directors of the Company (the “Board”), as
applicable.
4. Annual
Bonus. With respect to each calendar year while employed
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 no
later than the beginning of the annual period to which the bonus applies, after
consultation and input from the CEO; provided, however, that
Executive’s target Annual Bonus opportunity shall not be less than 50% of
Executive’s Base Salary (the “Target Bonus”).
5. Employee
Benefits. The Company shall provide Executive during 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 (other
than
the CEO). Executive shall be entitled to four weeks of paid vacation
and such number of days of sick leave 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. In
addition, Executive shall be entitled to the perquisites and other fringe
benefits currently made available to senior executives of the Company (other
than the CEO), commensurate with Executive’s position with the
Company.
6. Business
Expenses. Executive is authorized to incur reasonable 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 accounts of such expenditures, provided such expenditures are
consistent with the Company’s policy.
7. Termination. The
Executive’s employment hereunder may be terminated by either party at any time
and for any reason or no reason; provided that Executive will be required
to give the Company at least 30 days advance written notice of any resignation
of Executive’s employment (unless the Company waives its right to receive such
30-day notice). Notwithstanding any other provision of this
Agreement, the provisions of this Section 7 shall exclusively govern Executive’s
rights upon termination of employment with the Company and its
affiliates.
a. By
the Company For Cause; By the Executive Without Good Reason.
(i) The
Executive’s employment hereunder may be terminated by the Company for Cause (as
defined below) at any time or by Executive without Good Reason.
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(ii) For
purposes of this Agreement, “Cause” shall mean (i) Executive’s continued
failure to properly perform Executive’s duties hereunder (other than as a result
of total or partial incapacity due to physical or mental illness) as reasonably
determined by the CEO following notice by the Company to the Executive of such
failure and a reasonable opportunity for Executive to cure, (ii) dishonesty
in
the performance of Executive’s duties hereunder, (iii) an act or acts on
Executive’s part constituting (x) a felony under the laws of the United States
or any state thereof or (y) a misdemeanor involving moral turpitude, (iv)
Executive’s willful malfeasance or willful misconduct in connection with
Executive’s duties hereunder or any act or omission which is materially
injurious to the financial condition or business reputation of the Company
or
any of its subsidiaries or affiliates, or (v) Executive’s breach of the
provisions of Section 8 of this Agreement.
(iii) If
Executive’s employment is terminated by the Company for Cause or by Executive
without Good Reason, Executive shall be entitled to receive, reduced by any
amounts owed to the Company by Executive, the amounts described in the following
clauses (A) through (C) set forth below:
(A)
the
Base Salary through the date of termination;
(B)
reimbursement for any unreimbursed business expenses properly incurred by
Executive in accordance with Company policy prior to the date of Executive’s
termination; and
(C)
such
employee benefits under the employee benefit plans of the Company, including
accrued paid vacation, which have accrued for services already performed as
of
the date of termination of Executive’s employment (the amounts described in
clauses (A) through (C) hereof being referred to as the “Accrued
Rights”).
(iv) Following
such termination of Executive’s employment by the Company for Cause or by
Executive without Good Reason, 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.
(i) The
Executive’s employment hereunder shall terminate upon Executive’s death or if
Executive becomes physically or mentally incapacitated and is therefore unable
to perform Executive’s duties for a period in excess of one hundred twenty (120)
consecutive days or for more than one hundred eighty (180) days in any
consecutive twelve (12) month period (such incapacity is hereinafter referred
to
as “Disability”). Any question as to the existence of the physical or
mental incapacitation of Executive as to which Executive or his representative
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
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writing. The
determination of Disability made in writing to the Company and Executive shall
be final and conclusive for all purposes of the Agreement, and all costs
incurred by Executive and/or the Company that are related to such determination
shall be paid by the party incurring such costs.
(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 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 would have
otherwise been payable had the Executive’s employment not
terminated.
(iii) Following
Executive’s 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 Good
Reason.
(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:
(w) the
reduction by the Company of Executive’s Base Salary (other than as a result of a
general salary reduction affecting all Company employees); or
(x) any
material and adverse reduction in Executive’s duties and responsibilities made
without Executive’s written consent; or
(y) relocation
of Executive’s principal workplace more than fifty (50) miles from Executive’s
principal workplace as of the date hereof made without Executive’s written
consent; or
(z) a
material breach by the Company of the provisions of this Agreement which remains
uncured for thirty days after notice from Executive.
In
addition, “Good Reason” shall also be deemed to have occurred in the event the
Company fails to obtain from any successor to the Company an agreement to assume
and perform this Agreement, as contemplated by Section 10(e)
hereof. Notwithstanding the foregoing, none of
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the
events described in clauses (x), (y) or (z) of this Section 7(c)(ii) shall
constitute Good Reason unless Executive shall 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.
(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, then
upon the execution of an effective general release of claims (but not rights
which Executive may have as a shareholder or for indemnification) in a form
satisfactory to the Company, Executive shall be entitled to
receive:
(A) the
Accrued Rights; and
(B) subject
to Executive’s continued compliance with the applicable provisions of Section 8,
(x) continued payment of the Base Salary after the date of termination for
eleven (11) months (the “Severance Period”), and (y) payment of the Target Bonus
(prorated by multiplying the Target Bonus by a fraction, the numerator of which
shall be the number of months in the Severance Period and the denominator of
which shall be 12) in respect of the year in which such date of termination
occurs, payable at such time as the Annual Bonus would otherwise be
payable. Such Target Bonus will only be paid if the criteria for
payment of a Target Bonus under the annual incentive plan in effect as of the
date of termination are met; provided, that 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;
and
(C) acceleration
of that portion, if any, of any outstanding options to purchase shares of common
stock of the Company granted to Executive pursuant to the Company’s stock plans
(the “Options”) that is otherwise unexercisable as of the date of termination,
which would have otherwise become exercisable at any time(s) during the
Severance Period, with all Options continuing to be exercisable by Executive
during the full term of the Severance Period (but in any event for no shorter
period than provided for under the terms of the Options); and
(D) subject
to Executive’s continued compliance with the applicable provisions of Section 8,
continued coverage during the Severance Period under the Company’s medical
insurance plans in accordance with the terms thereof at the same cost to
Executive as was provided to Executive immediately prior to the date of
termination.
Executive
shall not be required to mitigate the amount of any payments or benefits
provided for pursuant to this Section 7(c)(iii) by seeking other
employment.
(iv) Notwithstanding
anything set forth in this Section 7(c) to the contrary, in the event that,
upon
or within twelve (12) months following or three (3) months prior to the
occurrence of a Change of Control, either (x) Executive’s employment is
terminated by the Company without Cause (other than by reason of Executive’s
death or Disability) or (y)
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Executive
resigns for Good Reason, the payments and benefits set forth in Section
7(c)(iii) above shall be modified as follows:
(A) in
lieu of the continued payment of Base Salary and payment of the Target Bonus
otherwise payable pursuant to Section 7(c)(iii)(B), Executive shall be paid,
in
a lump sum no later than ten (10) business days following the termination of
Executive’s employment, an amount equal to the sum of the Base Salary and the
Target Bonus (without consideration of whether the criteria to pay such Target
Bonus have been met); provided, however, that such payments shall
still be offset by any other cash severance or termination benefits payable
in
accordance with any other such plans, programs or arrangements;
(B) in
lieu of the acceleration of exercisability of the Options provided for in
Section 7(c)(iii)(C), one hundred percent (100%) of any portion of the Options
that is otherwise unexercisable as of the date of termination shall become
immediately exercisable, and all Options shall continue to be exercisable by
Executive during the full term of the Severance Period; and
(C) Executive’s
right to the Base Salary and the Target Bonus described in Section 7(c)(iv)(A)
(collectively, the “Advanced Payments”) and to any income to be realized (but
not necessarily recognized for tax purposes) on account of the Option
acceleration described in Section 7(c)(iv)(B) (the “Option Spread”), or to
retain the Advanced Payments or Option Spread, as the case may be, is expressly
contingent upon Executive’s compliance with each and every provision set forth
in Section 8. In the event that Executive engages in conduct that
contravenes the terms of Section 8, the Options described in Section 7(c)(iv)(B)
shall immediately terminate (and shall no longer be exercisable) and Executive
shall not be entitled to any of the benefits described in Section
7(c)(iv). In the event that Executive engages in conduct that
contravenes the terms of Section 8 subsequent to the date that he has been
paid
the Advanced Payments, or subsequent to the date that he has realized Option
Spread, (I) the Options described in Section 7(c)(iv)(B) shall immediately
terminate (and shall no longer be exercisable), and (II) Executive shall
promptly return a portion of the Advanced Payments and a portion of the Option
Spread, as the case may be. The amount of Advanced Payments and
Option Spread to be returned to the Company shall be determined by multiplying
the Advanced Payments and the Option Spread by the “Return Fraction” (defined in
the following sentence). The “Return Fraction” shall be a fraction
having a numerator equal to a number of consecutive calendar months beginning
in
the month in which Executive first engaged in conduct in contravention of the
terms of Section 8 and including each and every month thereafter during which
the offending behavior continues through the end of the one (1) year period
following the date Executive ceases to be employed by the Company and a
denominator equal to twelve (12). The required return of funds
described in this Section 7(c)(iv)(C) shall not constitute the Company’s
exclusive remedy if Executive engages in conduct that contravenes the terms
of
Section 8.
(D) Executive
shall not be required to mitigate the amount of any payments or benefits
provided for pursuant to this Section 7(c)(iv) by seeking other
employment.
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(v) For
purposes of Section 7(c)(iv), a “Change of Control” shall mean the occurrence of
any of the following events:
(A) any
Person (other than any Person holding securities representing 10% or more of
the
combined voting power of the Company’s outstanding securities on the date
hereof, the Company, any trustee or other fiduciary holding securities under
an
employee benefit plan of the Company, or any company owned, directly or
indirectly, by the shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company), becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing 50%
or
more of the combined voting power of the Company’s then-outstanding
securities;
(B) during
any period of twenty-four consecutive months (not including any period prior
to
the date hereof), individuals who at the beginning of such period constitute
the
Board, and any new director (other than (I) a director nominated by a
Person who has entered into an agreement with the Company to effect a
transaction described in Sections 7(c)(v)(A), (C), or (D) hereof or (II) a
director nominated by any Person (including the Company) who publicly announces
an intention to take or to consider taking actions (including, but not limited
to, an actual or threatened proxy contest) which if consummated would constitute
a Change of Control) whose election by the board of directors of the Company
or
nomination by the board of directors of the Company for election by the
Company’s shareholders was approved by a vote of at least
two-thirds (2/3rd) of the
directors
then still in office who either were directors at the beginning of the period
or
whose election or nomination for election was previously so approved, cease
for
any reason to constitute at least a majority thereof;
(C) the
consummation of any transaction or series of transactions under which the
Company is merged or consolidated with any other company, other than a merger
or
consolidation which would result in the shareholders of the Company immediately
prior thereto continuing to own (either by remaining outstanding or by being
converted into voting securities of the surviving entity or its parent) more
than 50% of the combined voting power of the voting securities of the Company
or
such surviving entity (or its parent) outstanding immediately after such merger
or consolidation; or
(D) the
complete liquidation of the Company or the sale or disposition by the Company
of
all or substantially all of the Company’s assets, other than a liquidation of
the Company into a wholly-owned subsidiary.
For
purposes of this Section 7(c)(v), the terms “Person” and “Beneficial Owner”
shall each have the same meaning as such terms are defined in Section 13(d)
and
Rule 13d-3, respectively, of the Securities Exchange Act of 1934, as
amended, or any successor thereto, and the term “Affiliate” shall mean any
entity directly or indirectly controlling, controlled by, or under common
control with, the Company or any other entity designated by the board of
directors of the Company in which the Company has an interest.
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(vi) If
all or any portion of the payments or benefits provided under Section 7(c)(iv),
either alone or together with other payments and benefits which Executive
receives or is then entitled to receive from the Company, would constitute
a
payment described in Section 280G(b)(2) (or its successors) of the Internal
Revenue Code, as amended from time to time (the “Code”), such payments and
benefits provided to Executive thereunder shall be reduced to the extent
necessary so that no portion thereof shall be subject to the excise tax imposed
by Section 4999 of the Code; but only if, by reason of such reduction, the
net
after-tax benefit to Executive with respect to such payments and benefits shall
exceed such net after-tax benefit if no such reduction were made. For
purposes of Section 7(c)(iv), "net after-tax benefit" shall mean the sum of
(I)
the total amounts payable to Executive hereunder, plus (II) all other payments
and benefits which the Executive receives or is entitled to receive from the
Company as a result of any such termination of employment set forth in Section
7(c)(iv) that would constitute a payment described in Section 280G(b)(2) of
the
Code, less (III) the amount of federal income taxes payable with respect to
the
foregoing calculated at the maximum marginal income tax rate for each year
in
which the foregoing shall be paid to Executive (based upon the rate in effect
for such year as set forth in the Code at the time of termination of Executive's
employment), less (IV) the amount of excise taxes imposed with respect to the
payments and benefits described in (I) and (II) above by Section 4999 of the
Code. The foregoing calculations shall be made, at the Company’s
expense, by a nationally recognized accounting firm selected by the
Company. The determination of such firm shall be conclusive and
binding on all parties.
(vii) 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 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 10(g) 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) 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
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Section
8(a), “Confidential Information” shall mean information (whether or not in
written form) which relates to the Company or any of its affiliates, or any
of
its businesses or products (including, without limitation, its financial data,
strategic business plans, and other proprietary information) or to this
Agreement, and which is not known to the public generally (excluding public
knowledge which occurs as a result of Executive’s breach of this covenant or the
wrongful acts of others who were under confidentiality obligations as to the
item or items involved), except in the conduct of the business of the Company,
as in existence as of the date of Executive’s termination of
employment.
(b)
As Vice President, Corporate Affairs and General Counsel, 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 or indirectly be engaged in any business in Competition (as
hereinafter defined) 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 business of the Company or its subsidiaries as the business was
conducted at any time during Executive’s employment 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.
(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 microwave or
millimeter wave systems, radios, products and equipment (or components of any
of
the foregoing), whether in existence or in development, relating to microwave
or
millimeter wave communications (including unlicensed spread spectrum radio,
licensed radio, wireless ethernet bridge, and fixed, portable, and mobile
wireless (e.g., Wi-Fi, WiMax, wireless local loop, mesh, point-to-point,
point-to-multipoint)), as carried on by the Company or its affiliates at any
time during Executive’s 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 offered, sold, used, serviced, or
maintained.
(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
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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 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 of the
Company or its subsidiaries 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.
9. Specific
Performance. Executive and the Company agree that the covenants
in Section 8 are reasonable covenants under the
circumstances. Executive agrees that any breach of the covenants
contained in Section 8 would irreparably injure the
Company. Accordingly, Executive agrees the 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, the Company may, without posting any
bond, 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 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 against Executive from any
court
having jurisdiction over the matter, restraining any threatened or further
violation of this Agreement by Executive.
10. Miscellaneous.
a. Governing
Law. To the maximum extent permitted by applicable law, this
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without regard to conflicts of laws principles
thereof.
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b. Entire
Agreement/Amendments. This Agreement contains the 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 supersedes 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, including, without
limitation, the Original Employment Agreement.
c. No
Waiver. The failure of a party to insist upon strict 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. Whenever
possible,
each provision of
this Agreement will be interpreted in a manner to be effectiveand
valid. If
any of the
covenants set forth in Section 8
of this Agreement
are held to be unreasonable,
arbitrary, or against public policy, such covenants will be considered
divisiblewith
respect to
scope, time, and geographic area and,
in
suchlesser
scope,
time,
and geographic area, will be effective, binding,
and enforceable
against Executive to the maximum extent permitted by applicable law. Any
provision of this Agreement which is determined to be prohibited, unenforceable,
or not authorized in any jurisdiction by a competent court of that jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability, or non-authorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability, or
legality of such provision in any other jurisdiction.
e. Assignment. This
Agreement shall not be assignable by Executive. This Agreement may be
assigned by the Company to a company that 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 solely the rights and obligations of such
successor company, provided that any assignee expressly assumes the
obligations, rights and privileges of this Agreement.
f. Successors;
Binding Agreement. This Agreement shall inure to the benefit of
and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributes, devises and
legatees.
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g. Notice. For
the purpose of this Agreement, notices and all 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
requested, postage prepaid, addressed to the respective addresses set forth
below, 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:
Proxim
Wireless Corporation
0000
X’Xxx Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Chief
Executive Officer
If
to
Executive:
To
the
most recent address of Executive set forth in the personnel records of the
Company.
h. Withholding
Taxes. The Company may withhold from any 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.
i. Counterparts. This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument. A
facsimile or copy of a signature is valid as an original.
[Signatures
on next page]
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
day and year first above written.
PROXIM
WIRELESS CORPORATION
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By: /s/
Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx
X. Xxxxxxxxxx
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Title: Chief
Executive Officer
|
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EXECUTIVE:
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/s/
Xxxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxxx
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