Exhibit 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT (the "Agreement") effective as of December 8, 2005,
by and between Proxim Wireless Corporation,
a Delaware corporation (the
"Company") and Geoffrey Smith (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;
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.
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a. Employment Term. Executive's term of employment under this
Agreement
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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
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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.
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a. While employed hereunder, Executive shall serve as the Vice
President Research & Development and
Product Line Management. In such position,
Executive shall have such duties and
authority as shall be determined from time
to time by President and Chief Operating
Officer ("COO").
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
COO.
3. Base
Salary. While employed hereunder, the Company shall pay
Executive
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a base salary (the "Base Salary") at the
annual rate of $230,000, payable in
regular installments in accordance with the
Company's usual payment practices.
Executive shall be entitled to such
increases in Executive's Base Salary, if
any, as may be determined from time to time
in the sole discretion of the board
of directors of the Company (the "Board"),
as applicable.
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4. Annual
Bonus. With respect to each calendar year while employed
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hereunder, Executive shall be eligible to
earn an annual bonus award (an "Annual
Bonus") pursuant to an annual incentive
plan to be established at the discretion
of the Board; provided, however, that
Executive's target Annual Bonus
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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 Chief Executive Officer). Executive
shall be entitled to such number of days
of paid vacation and sick leave as
established under the Company's policies as
in effect from time to time, which shall be
taken at such times as are
consistent with Executive's
responsibilities hereunder. In addition, Executive
shall be entitled to the perquisites and
other fringe benefits currently made
available to senior executives of the
Company (other than the Chief Executive
Officer), commensurate with Executive's
position with the Company.
6.
Business Expenses. Executive is authorized to incur reasonable
expenses
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in carrying out his duties and
responsibilities under this Agreement, including,
without limitation, expenses for travel and
similar items related to such duties
and responsibilities. The Company will
reimburse Executive for all such expenses
upon presentation by Executive from time to
time of appropriately itemized and
approved (consistent with the Company's
policy) accounts of such expenditures.
7.
Termination. The Executive's employment hereunder may be terminated
by
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either party at any time and for any reason
or no reason; provided that
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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.
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(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 after 30 days prior written notice
(unless the Company waives such notice
requirement).
(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
Chief Executive Officer following
notice by the Company to the Executive of
such failure, (ii) dishonesty in the
performance of Executive's duties
hereunder, (iii) an act or acts on
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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 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.
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(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.
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(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
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Reason.
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(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:
(x) 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
(y) any material and adverse reduction in Executive's duties
and responsibilities made without
Executive's written consent; or
(z) relocation of Executive's principal workplace more than
fifty (50) miles from Executive's principal
workplace as of the date hereof made
without Executive's written consent.
In addition, "Good Reason" shall also be
deemed to have occurred in the event
the Company fails to obtain from any
successor to the Company an agreement to
assume and perform this Agreement, as
contemplated by Section 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
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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
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Reason, then upon the execution of an
effective general release of claims in a
form satisfactory to the Company, Executive
shall be entitled to receive:
(A) the Accrued Rights; and
(B) subject to Executive's continued compliance with the
provisions of Section 8, (x) continued
payment of the Base Salary after the date
of termination for the shorter of (I) the
number of full months Executive was
employed by the Company (calculated with
reference to Executive's initial date
of employment and the same date of
subsequent months) or (II) twelve (12) months
(the "Severance Period"), and (y) payment
of the Target Bonus (prorated by
multiplying the Target Bonus by a fraction,
the numerator of which shall be the
number of months in the Severance Period
and the denominator of which shall be
12) in respect of the year in which such
date of termination occurs, payable at
such time as the Annual Bonus would
otherwise be payable. 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 or Terabeam, Inc.
("Parent") granted to Executive pursuant to
the Company's or Parent'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
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
thirteen (13) months following the
occurrence of a Change of Control, either
(x) Executive's employment is
terminated by the Company without Cause
(other than by reason of Executive's
death or Disability) or (y) Executive
resigns for Good Reason, the payments and
benefits set forth in Section 7(c)(iii)
above shall be modified as follows:
(A) in lieu of the continued payment of Base Salary and
payment of the Target otherwise payable
pursuant to Section 7(c)(iii)(B), the
Base Salary and Target Bonus (without
consideration of whether the criteria to
pay such Target Bonus have been
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met) amounts set forth therein shall be
paid in a lump sum no later than ten
(10) business days following the
termination of Executive's employment;
provided, however, that such payments
shall
