EXHIBIT 10.44
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") by and between Proxim
Corporation, a Delaware corporation (the "Company") and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the
"Executive") is effective as of April 24, 2003 (the "Effective Date").
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 9 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
Company's President and Chief Executive Officer. In such position, Executive
shall have such duties and authority as shall be 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 serve as a member of the Board for a term of three years as set forth in
the Company's Certificate of Incorporation.
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
Board. Executive agrees to establish his primary residence in the Northern
California area, within reasonable commuting distance form its Sunnyvale, CA
location, prior to September 1, 2003.
3. Base Salary. While employed hereunder, the Company shall pay
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. 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 shall not be
less than 100% of Executive's Base Salary (the "Target Bonus").
5. New Option Grant. Within thirty (30) days following the Effective
Date, Executive shall be granted a stock option to purchase 3,000,000 shares of
the Company's common stock (the "New Option"). The New Option shall have an
exercise price equal to the fair market value of the Company's common stock on
the date of grant and shall vest and become exercisable over a term of three (3)
years as set forth in Executive's stock option agreement (the "Stock Option
Agreement"). The New Option shall have a maximum term of ten years from the date
of grant (subject to earlier expiration in the event of the termination of
Executive's employment with the Company) and shall be subject to the terms and
conditions of the Company's 1999 Stock Incentive Plan and the Stock Option
Agreement.
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, 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. Relocation. The Company shall provide Executive with a relocation
benefits so that Executive may relocate his primary residence to the Northern
California area as required under Section 2 hereof. The terms and conditions
related to such relocation benefits are set forth in Exhibit A to this
Agreement.
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 (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).
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(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 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, 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
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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 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) 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) 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:
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(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 after the
date of termination for the shorter of (I) the number of full months Executive
was employed by the Company (calculated with reference to Executive's initial
date of employment and the same date of subsequent months) or (II) twelve (12)
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, in accordance with
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, the New Option (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
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.
(E) 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 twelve (12) 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
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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 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 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 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) 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), 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 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).
(D) Executive shall not be required to mitigate the amount of any
payments or benefits provided for pursuant to this Section 9(c)(iv) by seeking
other employment.
(v) For purposes of Section 9(c)(iv), a "Change of Control" shall
mean the occurrence of any of the following events:
(A) any Person (other than Ripplewood Holdings L.L.C., an
Affiliate of Ripplewood Holdings L.L.C., or 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
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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 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 (2/3rd) 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 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 foregoing calculations shall be made, at the
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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
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 Ripplewood Holdings L.L.C., 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) As President and Chief Executive Officer, 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 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
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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 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
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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.
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.
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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
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman
EXECUTIVE:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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