Exhibit 10.18
From: ________________
To: ________________
Date: _________, 2002
Re: Retention Agreement
________________________________________________________________________________
As you are aware, Repeater Technologies, Inc. (the "Company") is currently
exploring a possible sale or financing of the Company. We strongly believe that
your continued employment with the Company will enhance the Company's potential
value to prospective buyers and investors. Accordingly, as an incentive for you
to continue to work for the Company, the Company is offering you retention
compensation under the following terms:
1. RETENTION BONUSES. You are eligible to earn a series of cash bonuses,
as follows: On each of June 1, July 1, August 1, and September 1, 2002 (the
"Retention Dates"), you will earn a retention bonus, each in the amount of
$_________, subject to standard payroll deductions and withholdings (the
"Retention Bonuses"), provided that you remain employed by the Company as of the
corresponding Retention Date, and you have complied with your obligations under
this Agreement.
2. SATISFACTORY PERFORMANCE OF JOB DUTIES. In order to earn any
Retention Bonus, you must continue to perform your work duties in a satisfactory
manner and in compliance with the Company's policies and requirements.
3. TERMINATION OF RETENTION BONUSES. In the event of a Sale or Financing
of the Company, your right to receive Retention Bonuses shall immediately
terminate and you shall not earn any Retention Bonus(es) corresponding to a
later Retention Date.
A "SALE" of the Company is defined, for the purposes of this memorandum,
as a sale as a going concern of substantially all of its assets and/or stock, or
a merger. A "FINANCING" of the Company is defined, for the purposes of this
memorandum, as a debt or equity financing that is not part of a Sale.
4. RELEASE. In order to earn the fourth Retention Bonus (September 1),
you must sign and return to the Company a general release of claims in favor of
the Company in the form attached hereto as Exhibit A (the "Release") within the
time specified in the Release. You will not earn the fourth Retention Bonus if
you do not sign and return an effective Release to the Company within the
specified time frame. If earned, the Company will pay you the fourth Retention
Bonus within ten (10) days after the Effective Date of the Release (as defined
in Exhibit A).
1.
5. TERM OF AGREEMENT. This Retention Agreement shall terminate upon the
earliest to occur of: (a) a Sale; (b) a Financing; or (c) September 1, 2002. The
Company's obligation in Paragraph 6(a) shall survive the termination of this
Retention Agreement for four (4) weeks.
6. EMPLOYMENT TERMINATION.
(a) TERMINATION WITHOUT CAUSE. In the event the Company terminates
your employment without Cause, you will be paid an amount equal to six (6)
months of your base salary less the aggregate Retention Bonus(es) paid to you as
of your termination date, subject to payroll deduction and withholding
("Severance"), provided that you sign and return an effective Release to the
Company within the specified time frame. The Severance shall be paid within five
(5) days following Effective Date of your Release. The Severance, if due, shall
be paid in addition to any Retention Bonuses previously paid to you prior to
your termination.
(b) VOLUNTARY TERMINATION. If you voluntarily terminate your
employment before a Retention Date, or before a Sale or Financing of the Company
closes, you will not earn any Retention Bonus(es) corresponding to a later
Retention Date.
(c) TERMINATION BY THE COMPANY FOR CAUSE. If the Company terminates
your employment for Cause, you will not earn any Retention Bonus(es)
corresponding to any later Retention Dates. For purposes of this Agreement,
"Cause" for termination is: (a) your indictment or conviction (including a no
contest or guilty plea) of any felony or of any crime involving dishonesty; (b)
your participation in a fraud against the Company; (c) the material breach of
your duties to the Company, including persistent unsatisfactory performance of
your job duties; (d) intentional damage to any property of the Company; or (e)
your conduct that in the good faith and reasonable determination of the
Company's Board of Directors demonstrates gross unfitness to serve.
7. CONFIDENTIALITY. You must hold in strictest confidence the provisions
of this Agreement and may not publicize or disclose them in any manner
whatsoever; provided, however, that: (a) you may disclose this Agreement to your
immediate family; (b) you may disclose this Agreement in confidence to your
attorneys, accountants, auditors, tax preparers and financial advisors; and (c)
you may disclose this Agreement insofar as such disclosure may be necessary to
enforce its terms or as otherwise required by law. In particular, and without
limitation, you agree not to disclose the terms of this Agreement to any current
or former Company employee, other than as required pursuant to (c) above. If you
breach this confidentiality provision, you will not earn any Retention Bonus,
and you will not be eligible for Severance.
8. AT-WILL EMPLOYMENT. This arrangement does not alter the status of
your at-will employment relationship with the Company and, subject to the terms
of this memorandum, does not in any way interfere with your right or the
Company's right to terminate your employment at any time, with or without Cause
or advance notice, which rights are hereby expressly reserved.
2.
This memorandum, including Exhibit A, forms the complete and exclusive agreement
between you and the Company concerning the payment of retention compensation.
The terms in this Agreement supersede any other agreements or promises made to
you by anyone, whether oral or written, concerning retention compensation, but
do not in any way supersede that certain Change of Control Agreement between you
and the Company dated _______________.
I ACKNOWLEDGE THAT I HAVE READ, UNDERSTAND AND AGREE WITH THE ABOVE:
______________________________________ Dated: ____________________________
[______________]
3.
EXHIBIT A
EMPLOYEE AGREEMENT AND RELEASE
(TO BE SIGNED AND RETURNED TO THE COMPANY UPON THE EARLIER OF:
SEPTEMBER 1, 2002; AND/OR IN THE EVENT OF SEVERANCE ELIGIBILITY)
I agree to the terms of the foregoing Retention Agreement.
In exchange for the Retention Bonuses or Severance to which I would not
otherwise be entitled, I hereby generally and completely release Repeater
Technologies, Inc. (the "Company") and its directors, officers, employees,
shareholders, partners, agents, attorneys, parent and subsidiary entities,
predecessors, successors, insurers, affiliates and assigns from any and all
claims, liabilities and obligations, both known and unknown, that arise out of
or are in any way related to events, acts, conduct, or omissions occurring prior
to my signing this Agreement. This general release includes, but is not limited
to: (1) all claims arising out of or in any way related to my employment with
the Company or the termination of that employment; (2) all claims related to my
compensation or benefits from the Company, including salary, bonuses,
commissions, vacation pay, expense reimbursements, severance pay, fringe
benefits, stock, stock options, or any other ownership interests in the Company;
(3) all claims for breach of contract, wrongful termination, and breach of the
implied covenant of good faith and fair dealing; (4) all tort claims, including
claims for fraud, defamation, emotional distress, and discharge in violation of
public policy; and (5) all federal, state, and local statutory claims, including
claims for discrimination, harassment, retaliation, attorneys' fees, or other
claims arising under the federal Civil Rights Act of 1964 (as amended), the
federal Americans with Disabilities Act of 1990, the federal Age Discrimination
in Employment Act of 1967 (as amended) ("ADEA"), and the California Fair
Employment and Housing Act (as amended).
I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under the ADEA, as amended. I also acknowledge that the
consideration given for the waiver and release in the preceding paragraph hereof
is in addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA,
that: (a) my waiver and release do not apply to any rights or claims that may
arise after the day I sign this Agreement; (b) I have been advised hereby that I
have the right to consult with an attorney prior to signing this Agreement; (c)
I have twenty-one (21) days to consider this Agreement (although I may choose to
voluntarily sign this Agreement earlier); (d) I have seven (7) days following
the day I sign this Agreement to revoke the Agreement; and (e) this Agreement
will not be effective until the date upon which the revocation period has
expired, which will be the eighth day after I sign this Agreement (the
"Effective Date").
In granting the release herein, which includes claims that may be unknown to me
at present, I acknowledge that I have read and understood section 1542 of the
Civil Code of the State of California, which reads as follows: "A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby
expressly waive and relinquish all rights and benefits under that section and
any law or
legal principle of similar effect in any jurisdiction with respect to my release
of unknown and unsuspected claims herein.
By:_________________________________ Date:_________________________________
[______________]