EXHIBIT 10.1
SOMERA COMMUNICATIONS,
INC.
C. STEPHEN CORDIAL TRANSITION
AGREEMENT
This Transition Agreement
(“Agreement”) dated and effective as of September 14,
2004 (the “Effective Date”) is made by and between
Somera Communications, Inc. (the “Company”), and C.
Stephen Cordial (“Executive”).
WHEREAS, Executive is employed by
the Company as its Chief Financial Officer;
WHEREAS, Executive and Company are
parties to the Amended and Restated C. Stephen Cordial Employment
Agreement entered into as of April 2, 2004 (the “Employment
Agreement”);
WHEREAS, Executive is resigning from
his position effective as of December 31, 2004, and
NOW THEREFORE, in consideration of
the mutual promises made herein, the Company and Executive
(collectively referred to as “the Parties”) hereby
agree as follows:
1. Termination of Employment
. Executive hereby resigns his employment effective December 31,
2004 (the “Termination Date”). Except as required by
COBRA and similar laws, Executive shall not be eligible to
participate in the Company’s employee and fringe benefit
plans once his employment terminates.
2. Transition Period .
Executive agrees that, during the period commencing on the
Effective Date and ending on the Termination Date (the
“Transition Period”), he will use his best efforts to
fulfill his duties and responsibilities as Chief Financial Officer
as set forth in Section 1(b) of the Employment Agreement until such
time as the Company’s Board of Directors or President and
Chief Executive Officer otherwise provide. During the Transition
Period, Executive’s duties shall include: (i) completion of
any and all procedures, processes, testing, and other steps
required to successfully implement Section 404 (“Section
404”) of the Sarbanes-Oxley Act of 2002 (the
“Sarbanes-Oxley Act”) prior to the Termination Date or
such earlier date as required to successfully implement Section
404, including but not limited to the preparation of: a statement
of management’s responsibility for establishing and
maintaining adequate internal control over financial reporting for
the Company; management’s assessment of the effectiveness of
the Company’s internal control over financial reporting as of
the end of the Company’s most recent fiscal year; a statement
identifying the framework used by management to evaluate the
effectiveness of the Company’s internal control over
financial reporting; and a statement that the registered public
accounting firm that audited the Company’s financial
statements included in the Company’s annual report has issued
an attestation report on management’s assessment of the
Company’s internal control over financial reporting, (ii)
ensuring that the attestation report required by Section 404 is
properly prepared by the Company’s registered public
accounting firm as part of the annual report and taking such
actions as are necessary to ensure that such report does not
reflect any “material weakness” or other qualifications
indicating the Company’s non-compliance with Section 404
prior to the Termination Date or such earlier date as required to
successfully implement Section 404 (except as such qualifications
are the direct result
of other Company employees’ failure to
enforce required Company policies), (iii) training a replacement
Company Chief Financial Officer and transferring such duties to the
Company’s other finance personnel, including the
Company’s newly appointed Controller, as may be specified by
the Company’s President and Chief Executive Officer from time
to time, on and after the date such individuals are hired by the
Company, (iv) providing and assisting in providing SEC public
filing certifications pursuant to the Sarbanes-Oxley Act (including
certifying the Company’s 10-Q for the Company’s third
quarter 2004 and reviewing and advising the Company’s
principal financial officer with respect to such officer’s
certification of the Company’s 10-K for the Company’s
fiscal 2004), (v) supporting the vision and strategic direction set
forth by the Company’s President and Chief Executive Officer,
(vi) assisting and supporting in the transfer of the
Company’s accounting and IT functions as well as certain
other Company functions to the Company’s Texas facility,
(vii) assisting and supporting the Company’s President and
Chief Executive Officer’s plan to design a cost/expense
reduction program to assist in developing the Company’s 2005
business plan, and (viii) such other assignments and
responsibilities as are reasonably assigned to him by the
Company’s Board of Directors or President and Chief Executive
Officer.
3. Severance Benefits
.
(a) Severance Benefits
.
(i) Prior to Termination Date
. If prior to the Termination Date, Executive’s employment
with the Company terminates due to a Constructive Termination or is
involuntarily terminated by the Company other than for Cause
(“Early Termination”), then, subject to Executive
executing and not revoking a standard release of claims in favor of
the Company (the “Release”) and not breaching the
provisions of Section 10 of the Employment Agreement, (1) Executive
shall be entitled to receive continued payments at a rate equal to
Executive’s current salary rate, for a period commencing on
the date of Early Termination and ending on the date that is twelve
(12) months from the date of Early Termination, to be paid
periodically, less applicable withholding, in accordance with the
Company’s standard payroll practices, and (2) the Company
shall waive the cost for the Executive to continue
Executive’s group medical coverage (including
Executive’s group dental and vision coverage but only to the
extent that Executive is enrolled in such coverage prior to the
Termination Date) with the Company should Executive decide to
exercise Executive’s right to do so in accordance with Title
X of the Consolidated Budget Reconciliation Act of 1985, as amended
(“COBRA”). Such waiver of cost shall cease upon the
earlier of twelve (12) months from the effective date of such
coverage or the date on which the Executive obtains equivalent
coverage elsewhere.
(
