EXHIBIT 10.33
DIGITAL MICROWAVE CORPORATION
FORM OF EMPLOYMENT AGREEMENT
Attached is a form of employment agreement between the Company and certain
executive officers as listed below:
Name Position Annual Salary
---- -------- -------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. Senior Vice President, Worldwide Sales $247,500
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Chief Technical Officer and Vice President,
Corporate Marketing $201,600
▇▇▇ ▇▇▇▇▇▇▇▇ President, Broadband, Long Haul Services $320,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Senior Vice President, Chief Financial
Officer and Secretary $233,280
EMPLOYMENT AGREEMENT
The Agreement, dated as of _______ __, 199_ , is between Digital Microwave
Corporation, a California corporation ("Employer"), and __________,
("Employee").
RECITALS
* Employee is and has been employed by Employer and is currently serving as
__________.
* Employee and Employer entered into an open-ended Employment Agreement on
_____ __, 199_. Employer desires to revise the terms and conditions of the
_____ __, 199_ Agreement.
* Employer desires to continue to employ Employee and to assure itself of the
continued services of Employee for the Period of Employment provided for in this
Employment Agreement, and Employee desires to be employed by Employer for such
period, upon the following terms and conditions.
ACCORDINGLY, the parties agree as follows:
1. Period of Employment.
Employer shall employ Employee to render services to Employer in the position
and with the duties and responsibilities described in Section 2 for the period
(the "Period of Employment") commencing on the date of this Agreement and ending
on the date which the Period of Employment is terminated in accordance with
Section 4.
2. Position and Responsibilities.
(a) Position. Employee shall continue employment with Employer as
__________ and shall perform all services appropriate to that position as
well as other duties that may be assigned by Employer. Employee shall
devote his best efforts and full-time attention to the performance of his
duties. Employee shall be subject to the direction of Employer, which
shall retain full control of the means and methods by which he performs the
above services and of the place(s) at which all services are rendered.
Employee shall report to the __________ or another officer of Employer.
Employee shall be expected to travel if necessary or advisable in order to
meet the obligations of his position.
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(b) Other Activity. Except upon the prior written consent of Employer,
Employee (during the Period of Employment) shall not (i) accept any other
employment; or (ii) engage, directly or indirectly, in any other business,
commercial, or professional activity (whether or not pursued for pecuniary
advantage) that is or may be competitive with Employer, that might create a
conflict of interest with Employer, or that otherwise might interfere with
the business of Employer, or any Affiliate. An "Affiliate" shall mean any
person or entity that directly or indirectly controls, is controlled by, or
is under common control with Employer. Notwithstanding the foregoing, upon
reasonable notice to Employer, Employee may serve as a director of one for
profit entity and one not for profit entity so long as such entity is not
competitive with Employer or any Affiliate and where such service does not
otherwise create a conflict of interest.
(c) Employee shall be bound by the Non-Compete Agreement which is attached
as Exhibit A, and by reference is incorporated into this Employment
Agreement.
4. Compensation and Benefits.
(a) Compensation. In consideration of the services to be rendered under the
Agreement, Employer shall pay Employee his current base salary of
$__________ per year, payable semi-monthly, pursuant to the procedures
regularly established, and as they may be amended, by Employer in its sole
discretion, during the Period of Employment. Employer shall review
annually Employee's compensation, which may be modified on a short term
basis to reflect business or other conditions. Employer shall determine,
in its sole discretion, whether and how much the existing compensation
shall be adjusted, without regard to any policy or practice Employer may
have for adjusting salaries. In addition to base salary, Employee shall be
eligible to participate in the Employer's executive management incentive
bonus and stock option plans according to the terms of those plans.
(b) Executive Management Incentive Bonus Plan. The target bonus award will be
a percentage of the Employee's base salary. The percentage is to be set by
the Board at the beginning of each fiscal year. The current percentage is
__% of Employee's base salary, and is paid annually following the
certification of the business results of Digital Microwave Corporation.
The criteria for receiving an award under this Plan will be based on the
degree of success that Digital Microwave has in achieving its financial
goals for the fiscal year (__% of the target award) and the accomplishment
of certain key organizational objectives. (__% of the target award.) The
Plan is capped at ___% of the target award. A minimum threshold
achievement of target goals must be met in order to receive any bonus award
under the Plan.
(c) Benefits. Employee shall be entitled to vacation leave in accordance with
Employer's standard policies and the terms of Employee's original
employment offer letter dated _____ __, 199_. As Employee becomes eligible
thereof, Employee shall have the right to participate in and to receive
benefits from all present and future benefit plans specified in Employer's
policies and generally made available to similarly situated employees of
Employer. The amount and extent of benefits to which Employee is entitled
shall be governed by the specific benefit plans, as amended. Employee also
shall be entitled to any benefits or compensation tied to termination as
described in Section 4. Nothing stated in the Agreement shall prevent
Employer from changing or eliminating any benefit during the Period of
Employment as Employer, in its sole discretion, may deem necessary or
desirable. No statement concerning benefits or compensation to which
Employee is entitled shall alter in any way the term of the Agreement, any
renewal thereof, or its termination. All compensation and comparable
payments to be paid to Employee under the Agreement shall be less
withholdings required by law.
(d) Expenses. Employer shall reimburse Employee for reasonable travel and
other business expenses incurred by Employee in the performance of his
duties, in accordance with Employer's policies, as they may be amended
in Employer's sole discretion.
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4. Termination of Employment.
(a) By Death. The Period of Employment shall terminate automatically upon
the death of Employee. Employer shall pay to Employee's beneficiaries or
estate, as appropriate, any, compensation then due and owing, including
payment for accrued unused vacation, if any, and will when due make a
payment of any incentive bonus to which the Employee would have been
entitled prorated based on the number of months the Employee was employed
during the incentive bonus period. Thereafter, all obligations of Employer
under the Agreement shall cease. Nothing in the Section shall affect any
entitlement of Employee's heirs to the benefits of any life insurance plan
or other applicable benefits.
(b) By Disability. If, by reason of any physical or mental incapacity,
Employee has been or will be prevented from properly performing his duties
under the Agreement for more than ninety (90) consecutive days, then, to
the extent permitted by law, Employer may terminate the Period of
Employment without any advance notice. Employer shall pay Employee all
compensation to which he is entitled up through the day notice of
termination is provided, and, in addition, Employee shall be entitled to
the following benefits provided in subparagraph 4(c): severance, health
insurance premium payments, prorated incentive bonus, and continued vesting
of stock options; thereafter, all obligations of Employer under this
Agreement shall cease. Nothing in this Section shall affect Employee's
rights under any applicable Employer disability plan; provided, however,
that the severance benefits to which Employee is entitled shall be offset
by any disability income payments received by Employee so that the total
monthly severance and disability income benefit payments for the severance
period shall not exceed Employee's then current salary.
(c) By Employer Not For Cause. At any time, the Employer may terminate
the Period of Employment Not for Cause for any reason, by providing
Employee ten (10) days' advance written notice, provided that Employee
shall be paid, in addition to all compensation due and owing through the
last day actually worked, severance in an amount equal to twelve (12)
months of the Employee's then current base salary. Such severance shall be
paid by Employer to Employee in 12 equal monthly installments, commencing
one month from the date of termination, or, at Employer's discretion, in a
single lump sum on the termination date. Employer shall also pay the
Employer's share of health insurance premiums for a period of up to 12
months, or until Employee is eligible to participate in another employer's
plan, whichever comes first, should Employee elect to convert his health
insurance benefits under COBRA. Employer shall also pay when due any
incentive bonus to which the Employee would have been entitled prorated
based on the number of months the Employee was employed during the
incentive bonus period. Employee's stock options will continue to vest for
twelve (12) months following the termination date.
If Employer terminates the Period of Employment Not for Cause within
eighteen (18) months following a Change of Control as defined in
subparagraph 4(f), Employee shall receive the severance benefits set forth
in subparagraph 4(f)(i)-(iv) rather than the severance benefits set forth
in the subparagraph 4(c).
Employer shall have the option, in its complete discretion, to terminate
the Period of Employment at any time prior to the end of such notice
period, provided Employer pays Employee all compensation due and owing
through the last day actually worked plus an amount equal to the base
salary Employee would have earned through the balance of the above notice
period in addition to the severance benefits described above; thereafter,
all of Employer's obligations under the Agreement shall cease. Employer
may dismiss Employee without cause notwithstanding anything to the contrary
contained in or arising from any statements, policies, or practices of
Employer relating to the employment, discipline, or termination of its
employees.
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(d) By Employer For Cause. At any time, and without prior notice,
Employer may terminate the Period of Employment for Cause (as defined
below). Employer shall pay Employee all compensation then due and owing;
thereafter, all of Employer's obligations under the Agreement shall cease.
Termination shall be for "Cause" if Employee: (i) acts in bad faith and to
the detriment of Employer; (ii) exhibits in regard to his employment
willful misconduct, dishonesty, habitual neglect of duties, or any willful
act or omission that may materially and adversely affect the Employer's
business or that involves fraud, embezzlement or misappropriation of any
property or proprietary information of the Employer; (iv) is convicted of a
crime involving dishonesty, breach of trust, or physical or emotional harm
to any person; or (v) breaches any material term of the Agreement. If
termination is due to Employee's disability, Section 4(b) above shall
control, and not the subsection on termination for Cause.
(e) By Employee Not for Cause. At any time, Employee may terminate the
Period of Employment for any reason, with or without cause, by providing
Employer ten (10) days' advance written notice. Employer shall have the
option, in its complete discretion, to make termination of the Period of
Employment effective at any time prior to the end of such notice period,
provided Employer pays Employee all compensation due and owing through the
last day actually worked, plus an amount equal to the base salary Employee
would have earned through the balance of the above notice period, not to
exceed ten (10) days; thereafter, all of Employer's obligations under the
Agreement shall cease.
(f) By Employee for Good Reason Upon a Change of Control at anytime.
Employee may terminate, without liability, the Period of Employment for
Good Reason upon a Change of Control (as defined below), provided Employee
gives Employer sixty (60) days' advance written notice of the reason for
termination and his intent to terminate the Agreement. During the period,
Employer shall have an opportunity to correct the condition constituting
Good Reason. If the condition is remedied within the period, Employee's
notice to terminate shall be rescinded automatically; if not remedied,
termination of the Period of Employment shall become effective upon
expiration of the above notice period. In the event, Employer shall pay
Employee all compensation due and owing through the last day actually
worked.
Employer shall also have the option, in its complete discretion, to make
termination effective at any time prior to the end of the notice period,
provided that Employer pays Employee all compensation due and owing through
the balance of the notice period (not to exceed sixty (60) days). Employee
shall be entitled to exercise his right to terminate the Agreement for Good
Reason only if he gives the required notice not more than forty-five (45)
days after the occurrence of the event that is the basis for the Good
Reason. If Employee terminates the Period of Employment for Good Reason
upon a Change of Control, Employee shall receive the following:
(i) A severance payment equal to twenty four (24) month's of the
Employee's then base salary. At the discretion of the Employer, the
severance payment may be made in the form of salary continuation over the
equivalent pay periods that the severance covers or in a lump sum payment.
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(ii) A payment when due of the incentive bonus to which the Employee
would have been entitled prorated based on the number of months the
Employee was employed during the incentive bonus period.
(iii) A payment equal to the annual incentive bonus payments
received by Employee, if any, for the previous two years.
(iv) Payment of the Employee's share of health insurance premiums for
a period of up to twenty four (24) months, or until Employee is eligible to
participate in another Employer's plan, whichever comes first, should
Employee elect to convert his/her health insurance benefits under COBRA.
"Change of Control" shall mean the occurrence of any of the following
events as used herein, after the Effective Date: (i) any "person" (as such
term is used in Sections 13 (d) and 14 (d) of the Securities Exchange Act of
1934, as amended) other than Digital Microwave or its affiliates (a "Third
Party") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Employer representing
fifty percent (50%) or more of the total voting power represented by the
Employer's then outstanding voting securities; (ii) the stockholders of the
Employer approve a merger or consolidation of the Employer with any other
corporation that is a Third Party, other than a merger or consolidation which
would result in the voting securities of the Employer outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least
fifty percent (50%) of the total voting power represented by the voting
securities of the Employer or such surviving entity outstanding immediately
after such merger or consolidation; or (iii) the stockholders of the Employer
approve a plan of complete liquidation or dissolution of the Employer or an
agreement for the sale or disposition by the Employer of all or substantially
all the Employer's assets to a Third Party. "Change of Control" shall also
mean a change in the composition of the Board over a period of thirty-six
(36) months or less such that a majority of the Board members (rounded up to
the next whole number) ceases, by reason of one or more contested elections
for Board membership, to be comprised of individuals who either (i) have been
Board members continuously since the beginning of such period or (ii) have
been elected or nominated for election as Board members during such period by
at least a majority of the Board members described in clause (i) who were
still in office at the time such election or nomination was approved by the
Board.
Termination shall be for "Good Reason" if: (i) there is a material and
adverse change in Employee's position, duties, responsibilities, or status with
Employer; (ii) there is a reduction in Employee's salary then in effect, other
than a reduction comparable to reductions generally applicable to similarly
situated employees of Employer; (iii) there is a material reduction in
Employee's benefits, other than a reduction comparable to reductions generally
applicable to similarly situated employees of Employer; (iv) the Employer
involuntarily relocates the Employee; or (v) Employer materially breaches the
Agreement.
(g) Termination Obligations.
(i) Employee agrees that all property, including, without limitation,
all equipment, tangible Proprietary Information (as defined below),
documents, books, records, reports, notes, contracts, lists, computer disks
(and other computer-generated files and data), and copies thereof, created
on any medium and furnished to, obtained by, or prepared by Employee in the
course of or incident to his employment, belongs to Employer and shall be
returned promptly to Employer upon termination of the Period of Employment.
(ii) All benefits to which Employee is otherwise entitled shall cease
upon Employee's termination of the Period of Employment, unless explicitly
continued either under the Agreement or under any specific written policy
or benefit plan of Employer.
(iii) Upon termination of the Period of Employment, Employee shall be
deemed to have resigned from all offices and directorships then held with
Employer or any Affiliate.
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(iv) The representations and warranties contained in the Agreement and
Employee's obligations under the Section 4(g) on Termination Obligations
and Section 5 on Proprietary Information shall survive the termination of
the Period of Employment and the expiration of the Agreement.
(v) Following any termination of the Period of Employment, Employee
shall fully cooperate with Employer in all matters relating to the winding
up of pending work on behalf of Employer and the orderly transfer of work
to other employees of Employer. Employee shall also cooperate in the
defense of any action brought by any third party against Employer that
relates in any way to Employee's acts or omissions while employed by
Employer.
5. Proprietary Information.
(a) Defined. "Proprietary Information" is all information and any idea in
whatever form, tangible or intangible, pertaining in any manner to the
business of Employer, or any Affiliate, or its employees, clients,
consultants, or business associates, which was produced by any employee of
Employer, or any Affiliate, in the course of his or his employment or
otherwise produced or acquired by or on behalf of Employer, or any
Affiliate. All Proprietary Information not generally known outside of
Employer's organization, and all Proprietary Information so known only
through improper means, shall be deemed "Confidential Information."
Without limiting the foregoing definition, Proprietary and Confidential
Information shall include, but not be limited to: (i) formulas, teaching
and development techniques, processes, trade secrets, computer programs,
electronic codes, inventions, improvements, and research projects; (ii)
information about costs, profits, markets, sales, and lists of customers or
clients; (iii) business, marketing, and strategic plans; and (iv) employee
personnel files and compensation information. Employee should consult any
Employer procedures instituted to identify and protect certain types of
Confidential Information, which are considered by Employer to be safeguards
in addition to the protection provided by the Agreement. Nothing contained
in those procedures or in the Agreement is intended to limit the effect of
the other.
(b) General Restrictions on Use. During the Period of Employment,
Employee shall use Proprietary Information, and shall disclose Confidential
Information, only for the benefit of Employer and as is necessary to carry
out his responsibilities under the Agreement. Following termination,
Employee shall neither, directly or indirectly, use any Proprietary
Information nor disclose any Confidential Information, except as expressly
and specifically authorized in writing by Employer. The publication of any
Proprietary Information through literature or speeches must be approved in
advance in writing by Employer.
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6. Arbitration.
(a) Arbitrable Claims. All disputes between Employee (and his attorneys,
successors, and assigns) and Employer (and its Affiliates, shareholders,
directors, officers, employees, agents, successors, attorneys, and assigns)
relating in any manner whatsoever to the employment or termination of
Employee, including, without limitation, all disputes arising under the
Agreement, ("Arbitrable Claims") shall be resolved by arbitration. All
persons and entities specified in the preceding sentence (other than
Employer and Employee) shall be considered third-party beneficiaries of the
rights and obligations created by the Section on Arbitration. Arbitrable
Claims shall include, but are not limited to, contract (express or implied)
and tort claims of all kinds, as well as all claims based on any federal,
state, or local law, statute, or regulation, excepting only claims under
applicable workers' compensation law and unemployment insurance claims. By
way of example and not in limitation of the foregoing, Arbitrable Claims
shall include any claims arising under Title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, and the California Fair Employment and Housing Act, as
well as any claims asserting wrongful termination, breach of contract,
breach of the covenant of good faith and fair dealing, negligent or
intentional infliction of emotional distress, negligent or intentional
misrepresentation, negligent or intentional interference with contract or
prospective economic advantage, defamation, invasion of privacy, and claims
related to disability. Arbitration shall be final and binding upon the
parties and shall be the exclusive remedy for all Arbitrable Claims, except
that Employer may, at its option, seek injunctive relief and damages in
court for any breach of Section 5 of the Agreement. Subject to the
foregoing sentence, THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO
TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS.
(b) Procedure. Arbitration of Arbitrable Claims shall be in accordance
with the Employment Dispute Resolution Rules of the American Arbitration
Association ("AAA Employment Rules"), except as provided otherwise in the
Agreement. Arbitration shall be initiated by providing written notice to
the other party with a statement of the claim(s) asserted, the facts upon
which the claim(s) are based, and the remedy sought. The burden of proof
in any arbitration shall be allocated as provided by applicable law, unless
otherwise specified in the Agreement. Either party may bring an action in
court to compel arbitration under the Agreement and to enforce an
arbitration award. Otherwise, neither party shall initiate or prosecute
any lawsuit or administrative action in any way related to any Arbitrable
Claim. The Federal Arbitration Act shall govern the interpretation and
enforcement of the Section 6.
(c) Arbitrator Selection and Authority. All disputes involving Arbitrable
Claims shall be decided by a single arbitrator. The arbitrator shall be
selected by mutual agreement of the parties within thirty (30) days of the
effective date of the notice initiating the arbitration. If the parties
cannot agree on an arbitrator, then the complaining party shall notify the
AAA and request selection of an arbitrator in accordance with the AAA
Employment Rules. The arbitrator shall have only such authority to award
equitable relief, damages, costs, and fees as a court would have for the
particular claim(s) asserted. The fees of the arbitrator shall be split
between both parties equally. The arbitrator shall have exclusive
authority to resolve all Arbitrable Claims, including, but not limited to,
any claim that all or any part of the Agreement is void or unenforceable.
(d) Confidentiality. All proceedings and all documents prepared in
connection with any Arbitrable Claim shall be confidential and, unless
otherwise required by law, the subject matter thereof shall not be
disclosed to any person other than the parties to the proceedings, their
counsel, witnesses and experts, the arbitrator, and, if involved, the court
and court staff. All documents filed with the arbitrator or with a court
shall be filed under seal. The parties shall stipulate to all arbitration
and court orders necessary to effectuate fully the provisions of the
subsection concerning confidentiality.
(e) Continuing Obligations. The rights and obligations of Employee and
Employer set forth in the Section on Arbitration shall survive the
termination of Employee's employment and the expiration of the Agreement.
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7. Notices.
Any notice under the Agreement must be in writing and shall be effective upon
delivery by hand, upon facsimile transmission to the number provided below (if
one is provided), or three (3) business days after deposit in the United States
mail, postage prepaid, certified or registered, and addressed to Employer or to
Employee at the corresponding address below. Employee shall be obligated to
notify Employer in writing of any change in his address. Notice of change of
address shall be effective only when done in accordance with the Section.
Employer's Notice Address:
Vice President, Personnel
Digital Microwave Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax Phone No.: (▇▇▇)▇▇▇-▇▇▇▇
Employee's Notice Address:
__________
% Digital Microwave Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
8. Action by Employer.
All actions required or permitted to be taken under the Agreement by Employer,
including, without limitation, exercise of discretion, consents, waivers, and
amendments to the Agreement, shall be made and authorized only by the President
or by his or his representative specifically authorized to fulfill these
obligations under the Agreement.
9. Integration.
The Agreement is intended to be the final, complete, and exclusive statement of
the terms of Employee's employment by Employer. The Agreement supersedes all
other prior and contemporaneous agreements and statements pertaining in any
manner to the employment of Employee, and it may not be contradicted by evidence
of any prior or contemporaneous statements or agreements. To the extent that
the practices, policies, or procedures of Employer, now or in the future, apply
to Employee and are inconsistent with the terms of the Agreement, the provisions
of the Agreement shall control.
10. Amendments; Waivers.
The Agreement may not be modified, amended, or terminated except by an
instrument in writing, signed by each of the parties. No failure to exercise
and no delay in exercising any right, remedy, or power under the Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under the Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
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11. Assignment; Successors and Assigns.
Employee agrees that he will not assign, sell, transfer, delegate, or otherwise
dispose of, whether voluntarily or involuntarily, or by operation of law, any
rights or obligations under the Agreement. Any such purported assignment,
transfer, or delegation shall be null and void. Nothing in the Agreement shall
prevent the consolidation of Employer with, or its merger into, any other
entity, or the sale by Employer of all or substantially all of its assets, or
the otherwise lawful assignment by Employer of any rights or obligations under
the Agreement. Subject to the foregoing, the Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective heirs, legal
representatives, successors, and permitted assigns, and shall not benefit any
person or entity other than those specifically enumerated in the Agreement.
12. Severability.
If any provision of the Agreement, or its application to any person, place, or
circumstance, is held by an arbitrator or a court of competent jurisdiction to
be invalid, unenforceable, or void, such provision shall be enforced to the
greatest extent permitted by law, and the remainder of the Agreement and such
provision as applied to other persons, places, and circumstances shall remain in
full force and effect.
13. Attorneys' Fees.
In any legal action, arbitration, or other proceeding brought to enforce or
interpret the terms of the Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs.
14. Governing Law. The Agreement shall be governed by and construed in
accordance with the law of the State of California.
15. Interpretation.
The Agreement shall be construed as a whole, according to its fair meaning, and
not in favor of or against any party. By way of example and not in limitation,
the Agreement shall not be construed in favor of the party receiving a benefit
nor against the party responsible for any particular language in the Agreement.
Captions are used for reference purposes only and should be ignored in the
interpretation of the Agreement.
16. Employee Acknowledgment.
Employee acknowledges that he has had the opportunity to consult legal counsel
in regard to the Agreement, that he has read and understands the Agreement, that
he is fully aware of its legal effect, and that he has entered into it freely
and voluntarily and based on his own judgment and not on any representations or
promises other than those contained in the Agreement.
The parties have duly executed the Agreement as of the date first written above.
______________________________
__________
Digital Microwave Corporation
_______________________________
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Chairman and Chief Executive Officer
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EXHIBIT A
POST-EMPLOYMENT CONSULTING PERIOD
NON COMPETE AGREEMENT
Post-employment Consulting Period.
(i) If Employee is eligible for post-employment consulting benefits
pursuant to subparagraphs 4(b), 4(c) or 4(f), Employee will be available
for consultation upon Employer's request during the applicable Post-
employment Consulting Period. Employee shall make himself available for up
to 20 hours per month. Employee shall work in good faith and shall devote
his best efforts to perform the consulting services requested by Employer.
Employer shall work in good faith to reasonably accommodate Employee's
schedule. Employee shall not be required to provide more than 20 hours per
month, unless otherwise agreed in writing by both parties.
(ii) During the Post-employment Consulting Period, Employee may accept
other employment or consulting positions or engage in any other business
activity, except to the extent doing so interferes with Employees
obligations under this Agreement or creates a conflict of interest. If
Employee is retained, either as an employee or as an independent
contractor, by any company (or engages in any business activity) that is in
competition with the business of Employer, Employee shall notify Employer
within five (5) days (but no later than the date Employee begins the
retention or competitive activity). The Post-employment Consulting Period
will terminate effective on the effective date of this notice, unless
otherwise agreed in writing by Employer.
As of the Effective Date of this Agreement, the following companies are
considered to be in competition with Employer (but are not the only such
competitors): ▇▇▇▇▇▇ Corporation/Farinon Division, California Microwave,
Alcatel, NEC, Western Multiplex, P-Com, ATI, ▇▇▇▇▇, Siemens, Ericsson,
Nokia, Nortel, Nera, Wireless Inc.
(iii) The term of the Post-employment Consulting Period shall be the
period specified in Section 4, unless terminated sooner in accordance with
Paragraph (ii) above or as follows: Employee may terminate the Post-
employment Consulting Period for any reason by providing Employer ten (10)
days' advance written notice. Employer may terminate the Post-employment
Consulting Period without any prior notice only if Employee breaches a term
in Employment Agreement, including without limitation Section 4(g) on
Termination Obligations, Section 5 on Proprietary Information and Section 6
on Arbitration or Exhibit A on the Post-employment Consulting Period.
(iv) Employee's right to receive any benefits provided by Section 4 of the
Employment Agreement during the Post-employment Consulting Period is
conditioned on Employee performing Employee's obligations during the Post-
employment Consulting Period, and Employee shall not be entitled to any
additional compensation for the consulting services, unless otherwise
agreed in writing by Employer. Employer shall provide the benefits
provided in Section 4 of the Employment Agreement through the effective
date of the termination of the Post-employment Consulting Period.
Thereafter, all of Employer's obligations under this Agreement shall cease.
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