EXHIBIT 10.52
PCTEL, INC.
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") is
entered into effective as of January 6, 2006 (the "Effective Date") by and
between PCTEL, Inc. (the "Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Executive").
1. Superseding Agreement. This Agreement shall supersede the Employment
Agreement dated effective as of July 1, 2003 between Executive and the Company,
the Addendum to the Employment Agreement dated September 30, 2003, and the
Amendment to the Employment Agreement dated May 4, 2005. This Agreement,
together with the other agreements identified in Section 18 below, shall
represent the entire agreement and understanding between the parties as to the
subject matter herein.
2. Duties and Scope of Employment.
(a) Positions and Duties. Executive will continue to serve as Chief
Executive Officer of the Company, a position Executive has held since October
17, 2001. Executive will render such business and professional services in the
performance of his duties, consistent with Executive's position within the
Company, as shall reasonably be assigned to him by the Company's Board of
Directors (the "Board").
(b) Board Membership. Executive will continue to serve as a member
and Chairman of the Board, subject to any required Board and/or stockholder
approval.
(c) Obligations. During the Employment Term (as defined below),
Executive will perform his duties faithfully and to the best of his ability and
will devote his full business efforts and time to the Company. For the duration
of Executive's employment with the Company, Executive agrees not to actively
engage in any other employment, occupation or consulting activity for any direct
or indirect remuneration without the prior approval of the Board.
3. Employment Term. It is intended that the employment arrangement
contemplated by this Agreement shall continue until June 30, 2008 (such five (5)
year period being referred to herein as the "Employment Term"). Notwithstanding
the foregoing, the parties agree that neither this Agreement nor any provision
herein is intended to guarantee the continuation of Executive's employment for
the duration of the Employment Term. In the event that Executive's employment
with the Company terminates prior to the expiration of the Employment Term for
any reason, the parties agree that Executive shall be entitled to receive only
those benefits that are expressly provided by this Agreement in such
circumstances.
4. Base Salary. During the Employment Term, the Company will pay Executive
as compensation for his services a base salary at an annualized rate (the "Base
Salary") determined by the Board and the Compensation Committee of the Board
(the "Compensation Committee"). The Base Salary will be paid periodically in
accordance with the Company's normal payroll practices and be subject to the
usual required withholding. Executive's annual Base Salary will be reviewed on
an
annual basis by the Compensation Committee in accordance with the Compensation
Committee's established procedures for reviewing salaries of the Company's
executive officers.
(a) Bonus. While Executive is employed during the Employment Term,
Executive shall be entitled to receive, within sixty (60) days after the end of
each completed fiscal year, an annual target bonus (the "Core Bonus"), based on
the Company's fiscal year of up to one hundred percent (100%) of Executive's
then-current Base Salary based upon Executive's performance and the Company's
attainment of objectives mutually agreed upon by Executive and the Compensation
Committee (the objectives for fiscal year 2005 are set forth in a separate
schedule from this Agreement). In addition, while Executive is employed during
the Employment Term, Executive shall be entitled to receive an additional annual
bonus (the "Stretch Bonus") in an amount to be determined based on performance
goals established each year by the Compensation Committee and Board. The Stretch
Bonus shall be based on milestones to be measured over a one (1)-year period,
with any bonus payments becoming payable within thirty (30) days of the end of
the one (1)-year period (the target amount objectives for the Stretch Bonus for
fiscal year 2005 are set forth in a separate schedule from this Agreement).
Except as permitted under Section 8, Executive must be employed by the Company
during the entire applicable bonus period for the payment of either the Core
Bonus or the Stretch Bonus. With respect to any subjective milestones, the
determination of whether Executive has attained the milestones for both the Core
Bonus and the Stretch Bonus, and the amount, if any, of any bonus shall be
reasonably determined by the Compensation Committee.
(b) Equity Awards.
(i) Stock Options. Executive has been granted stock options
from time to time to purchase shares of the Company's Common Stock (the
"Options"). The Options will continue to vest on their original terms as long as
Executive provides continued service to the Company on the relevant vesting
dates and subject to the accelerated vesting provisions set forth in the Amended
and Restated Management Retention Agreement, dated as of even date herewith,
between the Company and Executive. The Options are subject to the terms,
definitions and provisions of the Company's 1997 Stock Plan (the "Option Plan")
and the stock option agreements by and between Executive and the Company (the
"Option Agreements"), all of which documents are incorporated herein by
reference.
(ii) Restricted Stock Grant. Executive has been granted from
time to time restricted stock awards of the Company's Common Stock (the
"Restricted Shares"). Executive shall acquire a vested interest in, and the
Company's repurchase right shall accordingly lapse with respect to all of the
Restricted Shares, in accordance with their original terms, subject to
Executive's continued service to the Company on such date. The restricted stock
grants shall be subject to the terms, definitions and provisions of the Option
Plan and the restricted stock award agreements evidencing the restricted stock
grants (the "Restricted Stock Agreements"), which documents are incorporated
herein by reference.
(iii) Acceleration upon Certain Termination Following Change
of Control. The exercisability of Executive's Options and the vesting of
Executive's Restricted Shares may be subject to acceleration in accordance with
the terms and conditions set forth in the Management Retention Agreement.
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(c) Deferred Compensation. Independent of the provisions of Section
8, with respect to the Company's Deferred Compensation Plans, Executive shall
continue to be entitled to receive the rights and benefits permitted Executive
under such plans.
5. Employee Benefits. While Executive is employed during the Employment
Term, Executive will be entitled to participate in the employee benefit plans
currently and hereafter maintained by the Company of general applicability to
other senior executives of the Company, including, without limitation, the
Company's group medical, dental, vision, disability, life insurance,
flexible-spending account plans and Executive Deferred Compensation Plan and
Executive Deferred Stock Plan (together the "Deferred Compensation Plans"). The
Company reserves the right to cancel or change the benefit plans and programs it
offers to its employees at any time; provided, however, that if the Company does
so, then in such event, Executive shall be compensated in an equivalent amount
for any loss represented by such cancellation or change as additional
compensation, unless such cancellation or change applies equally to all senior
executive officers of the Company.
6. Vacation. While Executive is employed during the Employment Term,
Executive shall be entitled to vacation benefits established by the Company
commensurate with Executive's status as the Chief Executive Officer and Chairman
of the Board. Notwithstanding the foregoing, the Executive shall have no less
than four (4) weeks of vacation. The Company's vacation policy may be revised
from time to time.
7. Expenses. While Executive is employed during the Employment Term, the
Company will promptly reimburse Executive for reasonable travel, entertainment
or other expenses incurred by Executive in the furtherance of or in connection
with the performance of Executive's duties hereunder, in accordance with the
Company's expense reimbursement policy as in effect from time to time. In
addition, Executive shall be entitled to (a) reimbursement for his legal fees
incurred in connection with the legal review of this Agreement up to a maximum
of five thousand dollars ($5,000.00) and (b) a monthly car allowance of one
thousand five hundred dollars ($1,500.00). The legal expense reimbursement shall
be made within ninety (90) days of the execution date of this Agreement.
8. Severance.
(a) Termination Following a Change of Control. If during the
Employment Term Executive's employment is terminated within twelve (12) months
following a Change of Control, the severance and other benefits to which
Executive is entitled, if any, shall be governed by the Management Retention
Agreement (which includes the definition of Change of Control). Notwithstanding
the foregoing, for purposes of Section 4(b) of Executive's Management Retention
Agreement, the term "Target Bonus" shall be deemed to include both the Core
Bonus and the Stretch Bonus. Furthermore, with respect to the Deferred
Compensation Plans, if during the Employment Term, Executive's employment is
terminated within twelve (12) months following a Change of Control (as defined
therein), Executive shall be entitled to all rights and benefits permitted
Executive under such plans.
(b) Involuntary Termination other than for Cause, Death or
Disability or Voluntary Termination for Good Reason Apart From a Change of
Control. If during the
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Employment Term, either prior to the occurrence of a Change of Control or after
the twelve (12) month period following a Change of Control, Executive's
employment with the Company terminates either (A) involuntarily by the Company
for reasons other than Cause, death or Disability (as such capitalized terms are
defined below) or (B) by Executive pursuant to a Voluntary Termination for Good
Reason, and Executive signs and does not revoke a standard release of claims
with the Company, then, subject to Section 12, Executive shall be entitled to
receive the following benefits from the Company:
(i) Salary and Bonus Continuation. Executive shall be entitled
to receive continuing payments of severance pay (less applicable withholding
taxes) at the rate equal to Executive's Base Salary rate, as then in effect, for
a period of twenty-four (24) months from the date of such termination in
accordance with the Company's normal payroll policies. In addition, Executive
shall be entitled to receive one hundred percent (100%) of Executive's Core
Bonus (less applicable withholding taxes) as in effect for the fiscal year in
which Executive's termination occurs, payable in equal installments over a
period of twelve (12) months from the date of such termination in accordance
with the Company's normal payroll practices. Executive shall not be entitled to
any Stretch Bonus as severance under this Section 8(b). If the Company
reasonably determines that Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code"), will result in the imposition of additional tax to an
earlier payment of the severance payments, the first six (6) months of the
severance payments will accrue during the six (6)-month period following the
Executive's termination and will become payable in a lump sum payment on the
date that is six (6) months and one (1) day following the date of the
Executive's termination of employment. The remaining severance payments will be
paid in accordance with the Company's normal payroll practices until all the
severance payments have been made. Notwithstanding the terms of this Agreement,
the continuation of Executive's Base Salary, the payment of the Core Bonus and
the provision of other benefits as provided in this Section 8(b) shall be in
lieu of any and all other benefits which Executive may be entitled to receive on
the date of Executive's termination of employment pursuant to any Company
severance and benefit plans and practices or pursuant to other agreements with
the Company, other than the Deferred Compensation Plans, the benefits of which
will be provided to Executive in accordance with the terms of such plans.
(ii) Benefits. The Company will reimburse Executive for the
cost of Executive's continued participation in the Company's health, dental and
vision plans at the same level of coverage as was provided to Executive
immediately prior to the termination of Executive's employment with the Company
("Company-Paid Coverage"). If such coverage included Executive's dependents
immediately prior to Executive's termination, such dependents shall also be
covered at the Company's expense. Company-Paid Coverage shall continue until the
earlier of (i) eighteen (18) months following the date of the termination of
Executive's employment (the "Benefits Termination Date"), or (ii) the date upon
which Executive or Executive's dependents become covered under another
employer's group health, dental and vision insurance benefit plans. If, after
eighteen (18) months following the Benefits Termination Date, Executive has not
become covered under another employer's group health, dental and vision
insurance benefit plans, Executive may independently obtain health, dental and
vision insurance benefits comparable in the aggregate in scope and coverage to
that provided by the Company to Executive immediately prior to the Benefits
Termination Date, and the Company shall reimburse Executive for the cost of the
premiums paid for such benefits until the earlier of (A) six (6) months
following the termination of Company-Paid Coverage, or (B) the date upon which
Executive and Executive's dependents become covered under
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another employer's group health, dental and vision insurance benefit plans.
Notwithstanding the foregoing, in no event will the Company provide any
reimbursements to Executive under this Section 8(b)(ii) beyond December 31 of
the second calendar year following the termination of Executive's employment.
(iii) Partial Accelerated Vesting. All equity awards
(including but not limited to the Options and the Restricted Shares) from the
Company then held by Executive shall partially accelerate, or if Executive is
then holding unvested shares, the Company's right to repurchase the
then-unvested shares under each such equity award shall partially lapse, with
respect to the number of shares under each such award that would have become
vested or been released from such repurchase right under each respective equity
award if Executive's employment with the Company had continued for an additional
twelve (12) months following such termination date.
(c) Voluntary Termination; Termination for Cause. If during the
Employment Term Executive's employment is terminated by the Company for Cause,
or by Executive for any reason, including death or Disability but other than
pursuant to a Voluntary Termination for Good Reason then (A) all further vesting
of any stock option (including the Options), restricted stock award (including
the Restricted Shares) or other Company equity compensation held by Executive
will cease immediately (however, Executive shall be permitted to exercise vested
options for the time period specified in his option agreements and he shall
retain all vested restricted stock) and all payments of compensation by the
Company to Executive hereunder will terminate immediately (except as to amounts
already earned), and (B) Executive will only be eligible for severance benefits
in accordance with the Company's established policies as then in effect. If
Executive's employment is terminated for any reason subsequent to the Employment
Term, Executive will only be eligible for severance and other benefits in
accordance with the Company's established policies and plans as then in effect.
9. Section 280G. In the event that the severance and other benefits
provided for in this Agreement or otherwise payable to Executive (i) constitute
"parachute payments" within the meaning of Section 280G of the Code and (ii) but
for this Section, would be subject to the excise tax imposed by Section 4999 of
the code, then Executive's severance benefits under the Employment Agreement
shall be payable either
(i) in full, or
(ii) as to such lesser amount which would result in no portion of such
severance benefits being subject to excise tax under Section 4999 of
the Code,
whichever of the foregoing amounts, taking into account the applicable federal,
state and local income taxes and the excise tax imposed by Section 4999, results
in the receipt by Executive, on an after-tax basis, of the greatest amount of
severance benefits under the Employment Agreement, notwithstanding that all or
some portion of such severance benefits may be taxable under Section 4999 of the
Code. Unless the Company and Executive otherwise agree in writing, any
determination required under this Section shall be made in writing by the
Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon Executive and the Company for
all purposes. For purposes of making the calculations required by this Section,
the Accountants may make reasonable assumptions and approximations concerning
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applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company
and Executive shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this Section. The Company shall bear all costs the Accountants may reasonably
incur in connection with any calculations contemplated by this Section.
10. Section 409A.
(a) Section 409A Compliance. This Agreement will be deemed amended
to the extent necessary to avoid imposition of any additional tax or income
recognition prior to actual payment to Executive under Section 409A of the Code
and any temporary, proposed or final Treasury Regulations and guidance
promulgated thereunder and the parties agree to cooperate with each other and to
take reasonably necessary steps in this regard.
(b) Board Discretion. Notwithstanding the provisions set forth in
this Agreement, the Board of Directors or the Committee may in its sole
discretion at any time amend the timing of payments or benefits set forth under
Section 8 for the benefit of Executive, to the extent such amended timing can be
effected in compliance with Section 409A of the Code and any temporary, proposed
or final Treasury Regulations and guidance promulgated thereunder.
11. Definitions.
(a) Cause. "Cause" shall mean:
(i) An act of personal dishonesty taken by Executive in
connection with his responsibilities as an employee and intended to result in
substantial personal enrichment of Executive;
(ii) Executive being convicted of, or a plea of nolo
contendere to, a felony;
(iii) A willful act by Executive which constitutes gross
misconduct and which is injurious to the Company; or
(iv) Following delivery to Executive of a written demand for
performance from the Company which describes the basis for the Company's
reasonable belief that Executive has not substantially performed his duties,
continued violations by Executive of Executive's obligations to the Company
which are demonstrably willful and deliberate on Executive's part and affords
Executive a reasonable opportunity to cure within a reasonable period of time.
(b) Disability. "Disability" shall mean that:
(i) Executive has been unable to perform his Company duties as
the result of his incapacity due to physical or mental illness, and such
inability, at least twenty-six (26) consecutive weeks after its commencement, is
determined to be total and permanent by a physician selected by the Company or
its insurers and acceptable to Executive or Executive's legal representative
(such Agreement as to acceptability not to be unreasonably withheld); and
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(ii) Executive is disabled pursuant to the terms of the
Company's long-term disability insurance covering Executive as then in effect.
Termination resulting from Disability may only be effected after at least thirty
(30) days' written notice by the Company of its intention to terminate
Executive's employment. In the event that Executive resumes the performance of
substantially all of his duties hereunder before the termination of his
employment becomes effective, the notice of intent to terminate shall
automatically be deemed to have been revoked.
(c) Voluntary Termination for Good Reason. "Voluntary Termination
for Good Reason" shall mean Executive voluntarily resigns after the occurrence
of any of the following:
(i) Without Executive's express written consent, a material
reduction of Executive's duties, title, authority or responsibilities, relative
to Executive's duties, title, authority or responsibilities as in effect
immediately prior to such reduction, or the assignment to Executive of such
reduced duties, title, authority or responsibilities; provided, however, that a
"Voluntary Termination for Good Reason" shall not be deemed to have occurred in
connection with a reduction of duties, title, authority or responsibilities
resulting solely from (A) a Change of Control (as defined in the Management
Retention Agreement), or (B) any change in Executive's position as Chairman of
the Board as a result of any legislation, statute, rule or regulation (including
rule or regulation of Nasdaq) that would require, or encourage for purposes of
prudent corporate governance, the separation of the roles of the Chairman and
the Chief Executive Officer, or any stockholder proposal to similar effect
approved by a majority of the stockholders;
(ii) Without Executive's express written consent, a material
reduction, without good business reasons, of the facilities and perquisites
(including office space and location) available to Executive immediately prior
to such reduction;
(iii) A reduction by the Company in the base salary of
Executive as in effect immediately prior to such reduction;
(iv) A material reduction by the Company in the aggregate
level of employee benefits, including bonuses, to which Executive was entitled
immediately prior to such reduction with the result that Executive's aggregate
benefits package is materially reduced (other than a reduction that generally
applies to Company employees); or
(v) Any act or set of facts or circumstances which would,
under Illinois case law or statute, constitute a constructive termination of
Executive.
12. Conditional Nature of Severance Payments.
(a) Noncompete. Executive acknowledges that the nature of the
Company's business is such that if Executive were to become employed by, or
substantially involved in, the business of a competitor of the Company during
the twenty-four (24) months following the termination of Executive's employment
(the "Restricted Period") with the Company for any reason (whether during the
Employment Term or subsequent to the end of such period), it would be very
difficult for Executive not to rely on or use the Company's trade secrets and
confidential information. Thus, to avoid the inevitable disclosure of the
Company's trade secrets and confidential information, Executive agrees and
acknowledges that Executive's right to receive the severance payments set forth
in Section 8 (to the extent Executive is otherwise entitled to such
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payments) shall be conditioned upon Executive not directly or indirectly
engaging in (whether as an employee, consultant, agent, proprietor, principal,
partner, stockholder, corporate officer, director or otherwise), nor having any
ownership interest in or participating in the financing, operation, management
or control of, any person, firm, corporation or business that competes in the
markets for the Restricted Business; provided, however, that nothing in this
Section 12(a) shall prevent Executive from owning as a passive investment less
than one percent (1%) of the outstanding shares of the capital stock of a
publicly-held company if (A) such shares are actively traded on the New York
Stock Exchange or the Nasdaq National Market and (B) Executive is not otherwise
associated with such company or any of its affiliates. The "Restricted Business"
for purposes of this Agreement is one which is engaged in the design,
development, manufacture, production, marketing, sale, licensing or servicing of
any products, or the provision of any services, that are the same as or similar
to those of the Company during the Restricted Period. Upon any breach of this
section, all severance payments and benefits pursuant to this Agreement shall
immediately cease.
(b) Non-Solicitation. During the twenty-four (24) months following
the termination of Executive's employment with the Company for any reason
(whether during or after the Employment Term), Executive agrees and acknowledges
that Executive's right to receive the severance payments set forth in Section 8
(to the extent Executive is otherwise entitled to such payments) shall be
conditioned upon Executive not either directly or indirectly soliciting,
inducing, attempting to hire, recruiting, encouraging, taking away, hiring any
employee of the Company or causing an employee to leave his or her employment
either for Executive or for any other entity or person.
(c) Understanding of Covenants. Executive represents that he (i) is
familiar with the foregoing covenants not to compete and not to solicit, and
(ii) is fully aware of his obligations hereunder, including, without limitation,
the reasonableness of the length of time, scope and geographic coverage of these
covenants.
13. Additional Representations, Warranties and Acknowledgments by
Executive. Executive represents and warrants to the Company that Executive is
not subject to any conditions, such as a covenant not to compete with a former
employer, that would in any way restrict either the Company's ability or right
to employ Executive or which would result in the Company incurring additional
costs for employing Executive. Further, Executive acknowledges that (i) the
consulting agreements between the Company and Executive dated as of February 15,
2001 and April 29, 2001 terminated in their entirety as of October 31, 2001 and
(ii) Executive's obligations to maintain the confidentiality of all confidential
and proprietary information of the Company under Executive's confidentiality
agreement with the Company dated October 17, 2001 (the "Confidentiality
Agreement") remain in full force and effect.
14. Assignment. This Agreement will be binding upon and inure to the
benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death and (b) any successor of the Company. Any such successor of
the Company will be deemed substituted for the Company under the terms of this
Agreement for all purposes. For this purpose, "successor" means any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company. None of the rights
of Executive to receive any form of compensation payable pursuant to this
Agreement may be assigned or transferred except by will or the laws of descent
and distribution.
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Any other attempted assignment, transfer, conveyance or other disposition of
Executive's right to compensation or other benefits will be null and void.
15. Notices. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given (a) on the
date of delivery if delivered personally, (b) one (1) day after being sent by a
well established commercial overnight service, or (c) four (4) days after being
mailed by registered or certified mail, return receipt requested, prepaid and
addressed to the parties or their successors at the following addresses, or at
such other addresses as the parties may later designate in writing:
If to the Company:
PCTEL, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
If to Executive:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(at the last residential address known by the Company)
16. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement will continue in full force and effect without said
provision.
17. Arbitration and Equitable Relief.
(a) Arbitration. Except as provided in Section 17(b) below,
Executive agrees that any dispute or controversy arising out of, relating to, or
concerning Executive's employment with the Company or the termination of
Executive's employment with the Company, or any interpretation, construction,
performance or breach of this Agreement, shall be settled by arbitration to be
held in ▇▇▇▇ County, Illinois, in accordance with the National Rules for
Resolution of Employment Disputes then in effect of the American Arbitration
Association, except as provided in Section 17(b) below. The arbitrator may grant
injunctions or other relief in such dispute or controversy. The decision of the
arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction. The Company and Executive shall each pay one-half of the
costs and expenses of such arbitration, and each party shall separately pay its
counsel fees and expenses.
This arbitration clause constitutes a waiver of Executive's and the
Company's right to a jury trial and relates to the resolution of all disputes
relating to all aspects of the employer/employee relationship, except as
provided in Section 17(b) below, including, but not limited to, the following
claims:
(i) Any and all claims for wrongful discharge of employment;
breach of contract, both express and implied; breach of the covenant of good
faith and fair dealing, both
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express and implied; negligent or intentional infliction of emotional distress;
negligent or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage; and defamation;
(ii) Any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, and the Fair Labor
Standards Act;
(iii) Any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination.
(b) Equitable Remedies. Executive agrees that it would be impossible
or inadequate to measure and calculate the Company's damages from any breach of
the covenants set forth in Section 12. Accordingly, Executive agrees that if
Executive breaches such covenants, the Company will have available, in addition
to any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement. Executive
further agrees that no bond or other security shall be required in obtaining
such equitable relief, and Executive hereby consents to the issuance of such
injunction and to the ordering of specific performance.
(c) Consideration. Executive understands that each party's promise
to resolve claims by arbitration in accordance with the provisions of this
Agreement, rather than through the courts, is consideration for other party's
like promise. Executive further understands that Executive is offered employment
hereunder in consideration of Executive's promise to arbitrate claims.
(d) Administrative Relief. Executive understands that this Agreement
does not prohibit Executive from pursuing an administrative claim with a local,
state or federal administrative body, such as the Department of Fair Employment
and Housing, the Equal Employment Opportunity Commission or the Workers'
Compensation Board. This Agreement does, however, preclude Executive from
pursuing court action regarding any such claim (other than workers' compensation
claims).
(e) Voluntary Nature of Agreement. Executive acknowledges and agrees
that Executive is executing this Agreement voluntarily and without any duress or
undue influence by the Company or anyone else. Executive further acknowledges
and agrees that Executive has carefully read this Agreement and that Executive
has asked any questions needed for Executive to understand the terms,
consequences and binding effect of this Agreement and fully understands it,
including that Executive is waiving Executive's right to a jury trial. Finally,
Executive agrees that Executive has been provided an opportunity to seek the
advice of an attorney of Executive's choice before signing this Agreement.
18. Integration. This Agreement, together with the Option Plan, Option
Agreements, the Restricted Stock Agreement, the Deferred Compensation Plans, the
Confidential Information Agreement, the Management Retention Agreement, and the
equity awards that have previously been issued to Executive and the schedules
apart from this Agreement that set forth the milestones for the payment of the
Core Bonus and the Stretch Bonus, represents the entire agreement and
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understanding between the parties as to the subject matter herein and supersedes
all prior or contemporaneous agreements whether written or oral. No waiver,
alteration, or modification of any of the provisions of this Agreement will be
binding unless in writing and signed by duly authorized representatives of the
parties hereto (except that the Option Plan and the Deferred Compensation Plans
may be revised or modified in accordance with their terms).
19. Tax Withholding. All payments made pursuant to this Agreement will be
subject to withholding of applicable taxes.
20. Governing Law. This Agreement will be governed by the laws of the
State of Illinois (with the exception of its conflict of laws provisions).
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by their duly authorized officers, as of the day and
year first above written.
COMPANY:
PCTEL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Date: January 6, 2006
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman, Compensation Committee of the Board of Directors
EXECUTIVE:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: January 6, 2006
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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