|
Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT (the
“Agreement”) effective as of October 25, 2007, by
and between Proxim Wireless Corporation, a Delaware
corporation (the “Company”) and David L. Renauld
(the “Executive”).
WHEREAS,
the Company considers it essential to its best interests and
the best interests of its stockholders for the Company to
employ Executive and Executive is willing to accept employment
on the terms hereinafter set forth in this
Agreement;
WHEREAS,
this Agreement amends, restates, supersedes, and replaces in
its entirety the employment agreement, dated as of December
19, 2000 (the “Original Employment Agreement”),
between the Company and the Executive;
NOW,
THEREFORE, 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 7 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 Vice
President, Corporate Affairs and General
Counsel. In such position, Executive shall have
such duties and authority as shall be determined from time to
time by the Chief Executive Officer
(“CEO”).
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 CEO.
3.
Base Salary . While employed hereunder, the Company
shall pay Executive a base salary (the “Base
Salary”) at the annual rate of $194,250, 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 of directors of the Company (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”)
pursuant to an annual incentive plan to be established by the
Board no later than the beginning of the annual period to
which the bonus applies, after consultation and input from the
CEO; provided , however , that Executive’s
target Annual Bonus opportunity shall not be less than 50% of
Executive’s Base Salary (the “Target
Bonus”).
5.
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 (other than the CEO). Executive
shall be entitled to four weeks of paid vacation and such
number of days of 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 (other than the CEO), commensurate
with Executive’s position with the Company.
6.
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 accounts
of such expenditures, provided such expenditures are
consistent with the Company’s policy.
7.
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 30
days advance written notice of any resignation of
Executive’s employment (unless the Company waives its
right to receive such 30-day
notice). Notwithstanding any other provision of
this Agreement, the provisions of this Section 7 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.
(ii) For
purposes of this Agreement, “Cause” shall mean
(i) Executive’s continued failure to properly
perform Executive’s duties hereunder (other than as a
result of total or partial incapacity due to physical or
mental illness) as reasonably determined by the CEO following
notice by the Company to the Executive of such failure and a
reasonable opportunity for Executive to cure, (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 8 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 (C) set forth below:
(A)
the Base Salary through the date of termination;
(B)
reimbursement for any unreimbursed business expenses properly
incurred by Executive in accordance with Company policy prior
to the date of Executive’s termination; and
(C)
such employee benefits under the employee benefit plans of the
Company, including accrued paid vacation, which have accrued
for services already performed as of the date of termination
of Executive’s employment (the amounts described in
clauses (A) through (C) hereof being referred to as the
“Accrued Rights”).
(iv) 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 7(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 to perform
Executive’s duties for a period in excess of one hundred
twenty (120) consecutive days or for more than one hundred
eighty (180) days in any consecutive twelve (12) month period
(such incapacity is hereinafter referred to as
“Disability”). Any question as to the
existence of the physical or mental incapacitation of
Executive as to which Executive or his representative and the
Company cannot agree shall be determined in writing by a
qualified independent physician mutually acceptable to
Executive and the Company. If Executive and the
Company cannot agree as to a qualified independent physician,
each shall appoint such a physician and those two physicians
shall select a third who shall make such determination
in
writing. The
determination of Disability made in writing to the Company and
Executive shall be final and conclusive for all purposes of
the Agreement, and all costs incurred by Executive and/or the
Company that are related to such determination shall be paid
by the party incurring such costs.
(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.
(iii) Following
Executive’s termination of employment due to death or
Disability, except as set forth in this Section 7(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:
(w) 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
(x) any
material and adverse reduction in Executive’s duties and
responsibilities made without Executive’s written consent;
or
(y) 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;
or
(z) a
material breach by the Company of the provisions of this
Agreement which remains uncured for thirty days after notice
from Executive.
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 10(e)
hereof. Notwithstanding the foregoing, none
of
the
events described in clauses (x), (y) or (z) of this Section
7(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 (but not rights
which Executive may have as a shareholder or for
indemnification) in a form satisfactory to the Company,
Executive shall be entitled to receive:
(A) the
Accrued Rights; and
(B) subject
to Executive’s continued compliance with the applicable
provisions of Section 8, (x) continued payment of the Base
Salary after the date of termination for eleven (11) 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. Such Target Bonus will only
be paid if the criteria for payment of a Target Bonus under
the annual incentive plan in effect as of the date of
termination are met; 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 plans (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 applicable
provisions of Section 8, continued coverage during the
Severance Period under the Company’s medical insurance
plans in accordance with the terms thereof at the same cost to
Executive as was provided to Executive immediately prior to
the date of termination.
Executive
shall not be required to mitigate the amount of any payments
or benefits provided for pursuant to this Section 7(c)(iii) by
seeking other employment.
(iv) Notwithstanding
anything set forth in this Section 7(c) to the contrary, in
the event that, upon or within twelve (12) months following or
three (3) months prior to 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 7(c)(iii) above shall be modified as
follows:
(A) in
lieu of the continued payment of Base Salary and payment of
the Target Bonus otherwise payable pursuant to Section
7(c)(iii)(B), Executive shall be
| 
