EXHIBIT 10.79
AMENDED EMPLOYMENT AGREEMENT
This AMENDED EMPLOYMENT AGREEMENT (the "Agreement") by and between Proxim
Corporation, a Delaware corporation (the "Company") and Xxxxx Xxxxxxxx (the
"Executive") is effective as of January 11, 2005 (the "Effective Date") amends
and supersedes in all respects the employment agreement entered into between the
Executive and the Company dated April 24, 2003.
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 Representations.
(a) Employment Term. Executive's term of employment under this
Agreement shall continue on the date hereof and will end on December 31, 2005
(the "Initial Term"). The term of this Agreement will be automatically extended
for one or more successive one-year periods (each a "Renewal Term") unless the
Company or the Executive gives the other written notice of non-renewal at least
sixty (60) days before the end of the Initial Term or the applicable Renewal
Term, as the case may be. Further, 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 9 of this
Agreement.
(b) Executive Representations.
(i) 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.
(ii) Executive further represents to the Company that the
entering into this Agreement and the change in Position contemplated hereby does
not constitute "Good Reason" under the Executive's previous employment agreement
with the Company dated April 24, 2003.
2. Position.
(a) While employed hereunder, Executive continued to serve as the
Company's Chairman of the Board of Directors and Chief Executive Officer until
December 31, 2004. In such position, Executive had such duties and authority as
were determined from time to time by the Board of Directors of the Company (the
"Board"). In addition, subject to election by the stockholders of the Company at
the annual meeting, Executive shall continue to serve as a member of the Board
for a term of three years as set forth in the Company's Certificate of
Incorporation.
and shall, if present, preside at meetings of the Board. In addition, Executive
shall specifically focus on the following duties; developing strategic alliances
and other business relationships for the Company; supervising the Company's
investor relations, including Wall Street relations, investor meetings,
conferences and other communications; general supervision and oversight of the
Company's Chief Executive Officer; and general oversight of the Company's
strategic financing and other initiatives.
(c) 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 without the prior written consent of the Board.
3. Base Salary.
(a) While employed hereunder and serving as Chief Executive Officer,
the Company paid Executive a base salary (the "Base Salary") at the annual rate
of $500,000, payable in regular installments in accordance with the Company's
usual payment practices.
(b) While employed hereunder as Executive Chairman of the Board of
Directors and effective January 1, 2005, the Company shall pay Executive a new
Base Salary at the annual rate of $400,000, 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, 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") which shall be paid quarterly pursuant to an annual incentive plan to be
established by the Board; provided, however, that Executive's target Annual
Bonus opportunity was not less than 100% of Executive's Base Salary while
Executive served as Chief Executive Officer and shall not be less than 75% of
Executive's Base Salary, while Executive serves as Executive Chairman (each, as
the case may be, the "Target Bonus").
5. Equity Award. Executive shall receive a grant of 250,000 restricted
stock units ("RSUs"). The RSUs will be subject to the terms of the 1995
Long-Term Incentive Plan and form of RSU agreement thereunder. The RSUs will
vest over two years from the date of grant, 50% of the RSUs shall vest on
December 31, 2005 and 50% shall vest on December 31, 2006, if in each case the
Executive remains employed by the Company under this Agreement on such vesting
date. The Executive will be solely responsible for any taxes associated with the
receipt, vesting, exercise or delivery of shares under the foregoing equity
award, and agrees to make timely payments to the Company sufficient to satisfy
the Company's withholding obligations. In the event the Company gives the
Executive written notice of its determination not to extend this Agreement
beyond the Initial Term, then on December 31, 2005, the Executive shall be fully
vested in all RSUs granted by the Company.
6. Employee Benefits. The Company shall provide Executive during the term
of his employment hereunder with coverage under all employee pension and welfare
benefit programs,
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plans and practices in accordance with the terms thereof, which the Company
generally makes available to its senior executives. Executive shall be entitled
to such number of days of paid vacation and 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,
commensurate with Executive's position with the Company.
7. 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 and
approved (consistent with the Company's policy) accounts of such expenditures.
8. [omitted].
9. 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 90 days advance written
notice of any resignation of Executive's employment, except as otherwise
provided in Section 1(a) (unless the Company waives its right to receive such
90-day notice). Notwithstanding any other provision of this Agreement, the
provisions of this Section 9 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 (as defined below) after 90 days prior written notice (unless the
Company waives such notice requirement).
(ii) For purposes of this Agreement, "Cause" shall mean (i)
Executive's continued failure substantially to perform Executive's duties
hereunder (other than as a result of total or partial incapacity due to physical
or mental illness) for a period of 10 days following notice by the Company to
the Executive of such failure, (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 10 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
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owed to the Company by Executive, the amounts described in the following clauses
(A) through (D) set forth below:
(A) the Base Salary through the date of termination;
(B) any earned but unpaid portion of Executive's Annual
Bonus for the fiscal year in which such termination occurs (which amount shall
be "earned" as determined by the Company based on the achievement of the
relevant performance criteria for the entire fiscal year, prorated for the
number of full calendar quarters during which Executive was employed by the
Company);
(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 or by Executive without Good Reason or by operation of the expiration of
the Initial Term or any Renewal Term, as the case may be, pursuant to Section
1(a), except as set forth in this Section 9(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 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 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 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 Company.
(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
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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.
Following Executive's termination of employment due to death or
Disability, except as set forth in this Section 9(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:
(A) except as otherwise contemplated by this Agreement,
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
(B) except as otherwise contemplated by this Agreement,
any material and adverse reduction in Executive's duties and responsibilities
made without Executive's written consent; or
(C) 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.
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 12(e) hereof.
Notwithstanding the foregoing, none of the events described in clauses (A), (B)
or (C) of this Section 9(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 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
provisions of Section 10, (x) continued payment of the Base Salary in effect
prior to December 31, 2004 for twenty-four (24) months (the "Severance Period"),
and (y) payment of two times the Target Bonus as of December 31, 2004, payable
during the Severance Period as to each 50% increment of
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the total (i.e., one times the Target Bonus) at such time as the Annual Bonuses
would otherwise be payable, in accordance with the payment schedule under the
annual incentive plan of the Company in effect as of the date of termination;
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 compensation plans, including, without
limitation, any new options granted to Executive following the Company's
recapitalization (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 shorter of (x) the original term of the Options or (y) five
(5) years following Executive's termination of Employment;
(D) Executive shall become fully vested in all RSUs;
(E) subject to Executive's continued compliance with the
provisions of Section 9, continued coverage during the Severance Period under
the Company's medical insurance plans in accordance with the terms thereof, as
required under the Consolidated Omnibus Budget Reconciliation Act of 1985, at
the same cost to Executive as was provided to Executive immediately prior to the
date of termination; and
(F) Executive shall not be required to mitigate the
amount of any payments or benefits provided for pursuant to this Section
9(c)(iii) by seeking other employment.
(iv) Notwithstanding anything set forth in this Section 9(c)
to the contrary, in the event that, upon or within thirteen (13) months
following 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) Executive resigns for Good Reason, the
payments and benefits set forth in Section 9(c)(iii) above shall be modified as
follows:
(A) in lieu of the continued payment of Base Salary and
payment of the Target Bonus pursuant to the annual incentive plan of the Company
otherwise payable pursuant to Section 9(c)(iii)(B), the Base Salary and Target
Bonus amounts set forth therein shall be paid in a lump sum no later than ten
(10) business days following the termination of Executive's employment;
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 and the term "Severance Period" shall mean
twenty-four (24) months when applied for other purposes of this Section
9(c)(iv);
(B) in lieu of the acceleration of exercisability of the
Options provided for in Section 9(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 shorter of (x) the original term of
the Options or (y) five (5) years following Executive's termination of
Employment;
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(C) Executive shall become fully vested in all RSUs;
(D) Executive's right to the Base Salary and the Target
Bonus described in Section 9(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 Options described in Section 9(c)(iv)(B) (the
"Option Spread"), or account of the vesting of RSUs in Section 9(c)(iv)(C) (the
"RSU Value"), or to retain the Advanced Payments, Option Spread or RSU Value as
the case may be, is expressly contingent upon Executive's compliance with each
and every provision set forth in Section 10. In the event that Executive engages
in conduct that contravenes the terms of Section 10, the Options described in
Section 9(c)(iv)(B) shall immediately terminate (and shall no longer be
exercisable), the RSUs shall cease vesting and immediately terminate and
Executive shall not be entitled to any of the benefits described in Section
9(c)(iv). In the event that Executive engages in conduct that contravenes the
terms of Section 10 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 9(c)(iv)(B) shall immediately terminate (and shall
no longer be exercisable), (II) the RSUs to the extent unvested shall
immediately terminate, and (III) Executive shall promptly return a portion of
the Advanced Payments, a portion of the Option Spread and a portion of the RSU
Value, as the case may be. The amount of Advanced Payments, Option Spread and
RSU Value to be returned to the Company shall be determined by multiplying the
Advanced Payments, the Option Spread and RSU Value 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 10 and including each and every month thereafter 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); and
(E) Executive shall not be required to mitigate the
amount of any payments or benefits provided for pursuant to this Sections
9(c)(iv) by seeking other employment.
(v) For purposes of Section 9(c)(iv) and 9(c)(vi), 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 9(c)(v)(A), (C), (D) or
(E) 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
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actual or threatened proxy contest) which if consummated would constitute a
Change in Control) whose election by the board of directors of the Company or
nomination for election by the Company's shareholders was approved by a vote of
at least two-thirds (2/3rds) 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 9(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.
(vi) If all or any portion of the payments or benefits
provided under Section 9(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 9(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 9(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 "Excise Taxes"). 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. Moreover, in the event the Company enters
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into a binding definitive written agreement relating to a Change of Control in
which Executive is likely to become subject to Excise Taxes, the Company agrees
to make commercially reasonable efforts to retain, at the Company's expense, an
independent third-party valuation firm to perform an independent valuation With
respect to consideration potentially due to Executive in connection with
Executive's obligations under Section 10 hereof that Executive and the Company
could consider reasonable compensation for services rendered following a Change
of Control under Code Section 280G and the Treasury Regulations promulgated
thereunder.
(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 9(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 12(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.
10. 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
Section 10(a), "Confidential Information" shall mean information (whether or not
in written form) which relates to the Company or any of their respective
affiliates, or any of their respective businesses or products (including,
without limitation, their 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) Executive has acquired and 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
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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 10, 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 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
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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.
11. Specific Performance. Executive and the Company agree that the
covenants in Section 10 are reasonable covenants under the circumstances, and
further agree that if in the opinion of any court of competent jurisdiction such
restraints are 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 Section 10 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 10 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 further violation of this Agreement by Executive.
12. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without regard to
conflicts of laws principles thereof.
(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 (collectively, the "Prior Agreements").
(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.
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(d) Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect or to any degree, 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 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 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.
(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 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:
Proxim Corporation
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Vice President, Human Resources
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.
[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 CORPORATION
BY: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: S.V.P. & General Counsel
EXECUTIVE:
/s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
X. Xxxxxxxx
000 Xxxx Xxxxx Xxx
Xxxx, XX.
-----------------------------------
Address of Executive
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