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EXHIBIT 10.3
Employee Noncompete and Post-Termination Benefits Agreement
In consideration of the continued employment of R. Xxx Xxxxxxxx, Xx. (the
"Employee") by AirNet Communications Corporation (the "Corporation"), for the
compensation received and for the severance benefit set forth below, Employee
agrees as follows:
1. Employee recognizes that the Corporation has expended and continues to
expend significant resources in establishing its various businesses, in
developing its products and services, and in fostering goodwill and customer
relations. To do this, the Corporation and its employees develop and obtain
information, data and knowledge which is not generally known to others, and
which is entitled to protection from disclosure or misappropriation.
2. In order to prevent the improper disclosure or use of trade secrets and
other confidential information and to protect the Corporation from unfair
competition, Employee agrees that during his employment and during the Severance
Period (as defined in Paragraph 10(b) below), Employee will not, either directly
or indirectly,
(a) own any interest in (except for ownership of shares in a
publicly-traded company not exceeding five percent of any class of
outstanding securities), or be an employee, agent, director, advisor or
consultant to or for any corporation (other than the Corporation or an
affiliate of the Corporation), business enterprise or person engaged
anywhere in the world in the development, manufacture, providing, sale,
marketing, promotion or distribution of any base station product, product
lines or services competitive with any manufactured, provided, sold,
marketed, promoted or distributed by the Corporation, and Employee shall
not assist in, manage or supervise any of the foregoing activities
(hereinafter referred to as "Competitive Activities"); provided, however,
this Paragraph 2(a) shall not be deemed to prevent Employee from working
after termination of such Severance Period in any areas or division
within the wireless industry.
(b) undertake any action to induce or cause any customer or client of the
Corporation who had been a customer or client during Employee's term of
employment with the Corporation to discontinue any part of its business
with the Corporation; or
(c) cause, induce or in any way facilitate the employment by any other
person or organization of any employee of the Corporation who had been an
employee during Employee's term of employment with the Corporation.
Notwithstanding anything to the contrary contained elsewhere in this Agreement,
beginning with
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the first day of the tenth month of the Severance Period, Employee shall be
entitled to engage in Competitive Activities provided, however, that if Employee
elects to engage in Competitive Activities during the Severance Period pursuant
to this Paragraph 2, the Corporation shall not thereafter be obligated to pay or
provide, and the Employee shall not thereafter be entitled to receive and hereby
waives, the severance pay and health and life insurance benefits provided for
under Paragraphs 10(a), 10(b) and 10(c) of this Agreement (hereinafter referred
to as the "Contingent Severance Benefits"). In this regard, in the event
Employee elects to engage in Competitive Activities during the Severance Period
pursuant to this Paragraph 2, the Corporation shall be forever relieved of its
obligation to pay and provide the Contingent Severance Benefits, beginning with
the first day on which Employee engages in such Competitive Activities. In the
event Employee elects to engage in Competitive Activities pursuant to this
Paragraph 2, Employee shall deliver to the Corporation a written notice of his
intention to engage in Competitive Activities pursuant to this Paragraph 2 and
the date on which such Competitive Activities will commence. Nothing herein
shall be construed to restrict Employee's right to accept employment in any
business not competitive with that of the Corporation.
3. Employee agrees and acknowledges that the rights and obligations set
forth under this Agreement are of a unique and special nature and that the
Corporation will suffer irrevocable harm and is without an adequate legal remedy
in the event Employee violates the agreements set forth herein. Employee
therefore agrees that the agreements made by Employee under this Agreement shall
be specifically enforceable in equity and that the Corporation may obtain an
injunction enjoining the violation of any provision in this Agreement, in
addition to all other rights and remedies at law or in equity that may be
available to the Corporation. The prevailing party shall be entitled to recover
all costs (including attorneys' fees) incurred by such prevailing party in
connection with any arbitration, suit or other proceeding with respect to this
Agreement.
4. Any consent to or waiver of any breach or default in the performance of
any obligations hereunder or under any other agreement shall not be deemed or
construed to be a consent to or waiver of any other breach or default in the
performance of any of the same or any other obligations hereunder. Failure on
the part of the Corporation or Employee to complain of any act or failure to act
of the other party or to declare the other party in default, irrespective of the
duration of such failure, shall not constitute a waiver of rights hereunder and
no waiver hereunder shall be effective unless it is in writing and executed by
the party waiving the breach or default hereunder.
5. This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida. If a dispute arises out of or relates to this
Agreement and if said dispute cannot be resolved through direct discussions, the
parties agree to endeavor first to settle the dispute in an amicable manner by
mediation administered by the American Arbitration Association under its
National Rules for the Resolution of Employment Disputes. Thereafter, any
unresolved dispute arising out of or relating to this Agreement or the breach,
termination or validity thereof shall be settled by binding arbitration in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association, before one neutral arbitrator, in
Melbourne, Florida. The arbitrator shall have the authority to award legal
relief for a material
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breach of this Agreement and to grant injunctive relief pursuant to paragraph 3
of this Agreement. Any award entered by the arbitrator, including injunctive
relief, shall be final and binding and judgment may be entered thereon by any
party in any court of competent jurisdiction in the State of Florida.
6. If any provision of this Agreement shall, in whole or in part, prove to
be invalid for any reason, such invalidity shall affect only the portion of such
provision which shall be invalid, and in all other respects this Agreement shall
stand as if such invalid provision, or other invalid portion thereof, had not
been a part of this Agreement. In view of the substantial harm which shall
result from Employee's breach of any of the agreements contained herein, the
Corporation and Employee agree that such agreements shall be enforced to the
fullest extent permitted by law. Accordingly, if, in any judicial proceeding, a
court shall determine that such agreements and restrictions are unenforceable
because they are too extensive in scope or survive for too long a period of
time, or for any other reason, then the Corporation and Employee intend that the
agreements or restrictions shall be deemed to cover such maximum scope and
maximum period of time and shall otherwise be deemed to be limited in such
manner as shall permit enforceability by such court.
7. Nothing in this Agreement shall be construed so as to limit (i) any
obligation owing by Employee to the Corporation under that certain Proprietary
Information and Inventions Agreement dated July 30, 1996 between the Corporation
and Employee or (ii) any obligation owing by Employee to the Corporation or the
Corporation to the Employee as a matter of common law.
8. Employee has not been promised any specific term of employment with the
Corporation, his employment is on an "at will" basis, and Employee agrees that
neither this Agreement nor any other agreement, whether in writing or verbally,
constitutes or promises a specific term of employment.
9. Employee understands that if his employment with the Company is
terminated for any reason, Employee will continue to be bound by the provisions
of this Agreement regardless of the reasons or circumstances surrounding such
termination. However, if the Corporation terminates Employee's employment during
the term of this Agreement for (1) any reason other than for "cause" as defined
below or (2) Employee resigns his employment for a "Good Reason" as defined
below (either to be considered a "Termination Event"), Employee will be entitled
to the following benefits as additional consideration for the covenants
contained in this Agreement:
(a) Severance pay in the form of regular installments of Employee's
weekly base salary at the time of termination (less deductions required
by law) on the same scheduled dates as if Employee were actively
employed, for a period of one year following his termination, or until
Employee engages in Competitive Activities pursuant to Paragraph 2 above,
whichever occurs first.;
(b) Continued coverage under the Corporation's health insurance policy in
effect for
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the period (the "Severance Period") that Employee is receiving severance
payments under paragraph 10(a) above;
(c) Continued coverage under the Corporation's group life insurance
policy, if any, at the benefit levels that Employee enjoyed immediately
prior to his termination, for the Severance Period;
(d) Employee is currently the holder of stock options to purchase shares
of Common Stock of the Corporation (the "Options"). The parties agree
that the Options shall vest and be exercisable in accordance with the
existing provisions of the plan or agreement pursuant to which they were
granted, except that in the event of a Termination Event (i) the exercise
provisions relating to those Options which vest and become exercisable on
or prior to the date of the Termination Event (including those Options
entitled to accelerated vesting under subparagraph (ii) below), shall be
modified to provide that such Options may be exercised by Employee at any
time prior to that date which is eighteen (18) months following the date
of the Termination Event , (ii) the vesting provisions relating to those
Options which would otherwise vest on or prior to the later of February
24, 2001 or that date which is one year following the date of the
Termination Event shall be modified to provide that such Options vest and
become exercisable on the date of the Termination Event and (iii) the
Corporation shall promptly take such actions on its part as are
necessary, including the amendment of any such stock option agreements,
to modify the exercise and vesting provisions of such Options in
accordance with the terms of this Paragraph 10(d). The parties agree that
those Options which are not fully vested and exercisable on or prior to
the date of the Termination Event after giving effect to the provisions
of this Paragraph 10(d) shall not vest and shall be forfeited by
Employee.
(e) Employee understands that the full applicable payroll deductions for
withholding and any contributions to group insurance benefits will remain
in effect during the Severance Period.
For the purpose of eligibility for these severance benefits, termination for
"cause" is defined as termination for Employee's intentional bad faith act or
omission, criminal act, or gross dereliction of duty, which is materially
harmful or damaging to the Corporation, or material breach of any of Employee's
obligations under the Proprietary Information and Inventions Agreement executed
by the Corporation and Employee or under this Agreement.
For purposes of eligibility for severance benefits, a "Termination Event" shall
include termination of Employee for any reason other than for "cause" as defined
above or if Employee resigns employment for "Good Reason." "Good Reason" shall
mean, without the Employee's written consent (a) Employee is assigned a new
position which entails a reduction in the nature of Employee's authority with
respect to the operation of the Company's business; (b) a reduction in the
Employee's annual base salary or an adverse change in benefits or perquisites
other than a
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change that is generally applicable to all executive employees; (c) the
Company's requirement that the Employee's site of principal employment be more
than twenty-five miles from the offices at which the Employee is principally
employed on the date of this Agreement.
10. The Corporation and Employee hereby acknowledge that in the event
Employee is entitled to a severance payment or payments under that certain
Amended and Restated Change of Control, Severance and Bonus Agreement dated
March 17, 1999 between the Corporation and Employee (the "Change of Control,
Severance and Bonus Agreement") or any other agreement between the Corporation
and Employee, the severance pay to which Employee is otherwise entitled under
Paragraph 10(a) of this Agreement shall be reduced by the amount of any
severance payment(s) received by Employee pursuant to the terms of the Change of
Control, Severance and Bonus Agreement and/or any other agreement. In this
regard, this Agreement shall be construed so as to preclude Employee from
receiving duplicative severance payments from the Corporation pursuant to the
terms of more than one agreement between the Corporation and Employee.
11. This Agreement shall terminate eighteen (18) months from the date of
execution of this Agreement.
12. This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
13. Except for the rights of Employee under this Agreement, in the event of a
Termination Event, as a condition to the Corporation's obligation to pay any
payments or benefits which may be due under Section 10 of this Agreement, the
Employee shall first execute and deliver an agreement unconditionally and
irrevocably releasing and forever discharging the Corporation of and from, and
the Employee will agree not to xxx and not to assert against the Corporation,
any causes of action, claims and demands whatsoever, known or unknown, at law,
in equity, or before any agency or commission of local, state and federal
governments, arising, alleged to have arisen or which might have been alleged to
have arisen, or which may arise (i) in connection with Employee's employment
with the Corporation , (ii) in connection with Employee's performance of the
duties of his employment with the Corporation , or (iii) under any law
including, but not limited to federal, state or municipal anti-discriminating
laws such as The Americans With Disabilities Act, Title VII of the Civil Rights
Act of 1964, as amended in 1972, 1991, and the Age Discrimination in Employment
Act of 1967, that Employee on its own behalf and on behalf of his heirs,
executors, administrators or assigns, ever had, now has or hereafter can, shall
or may have against the Corporation for or by reason or any cause whatsoever.
14. This Agreement shall be binding on and inure to the benefit of the
Corporation and its successors and assigns and to any of its subsidiaries which
Employee may at any time be employed as if named as the Corporation. This
Agreement may be amended only by written instrument executed by the parties to
this Agreement.
15. This Agreement supercedes and replaces the Incentive Agreement between X.
Xxx
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Xxxxxxxx, Jr. and AirNet Communications Corporation dated February 28, 1997.
AIRNET COMMUNICATIONS CORPORATION
/s/ R. Xxx Xxxxxxxx, Xx. By: /s/ J. XXXXXXXX XXXXXXX
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R. Xxx Xxxxxxxx, Xx.
Dated: 10/26/99 Dated: 10/25/99
MEL1 #433671 v1
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Xxxxxxxx, Jr. and Airnet Communications Corporation dated February 28, 1997.
AIRNET COMMUNICATIONS CORPORATION
/s/ R. XXX XXXXXXXX, XX. By: /s/ J. XXXXXXX XXXXXXX
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R. Xxx Xxxxxxxx, Xx.
Dated 10/26/99 Dated 10/25/99
