Employment Agreement - Western Multiplex Corp. and Frederick Corsentino


                              EMPLOYMENT AGREEMENT     EMPLOYMENT AGREEMENT (the 'Agreement') dated as of May 2, 2000 by andbetween Western Multiplex Corporation, a Delaware Company (the 'Company') andFrederick Corsentino (the 'Executive').     WHEREAS, the Company considers it essential to its best interests and thebest interests of its stockholders to foster the continued employment ofExecutive by the Company during the term of this Agreement and Executive iswilling to accept and continue Executive's employment on the terms hereinafterset forth in this Agreement;     NOW, THEREFORE, in consideration of the premises and mutual covenantsherein and for other good and valuable consideration, the parties agree asfollows:     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 withthe Company constitutes 'at-will' employment and that this Agreement may beterminated at any time by the Company or Executive; provided, however, that any                                                    --------- -------          termination of employment by Executive (other than for death or PermanentDisability) may only be made upon 90 days prior written notice to the Company.          b.  Executive Representation.  Executive hereby represents to the              ------------------------                                     Company that the execution and delivery of this Agreement by Executive and theCompany and the performance by Executive of the Executive's duties hereundershall not constitute a breach of, or otherwise contravene, the terms of anyemployment agreement or other agreement or policy to which Executive is a partyor otherwise bound.     2.   Position.          --------           a.        While employed hereunder, Executive shall serve as theCompany's Vice President of Sales.  In such position, Executive shall have suchduties and authority as shall be determined from time to time by the chiefoperating officer of the Company (or his designee) (the 'COO').          b.        While employed hereunder, Executive will devote Executive'sfull business time and best efforts to the performance of Executive's dutieshereunder and will not engage in any other business, profession or occupationfor compensation or otherwise which would conflict with the rendition of suchservices either directly or indirectly, without the prior written consent of theCOO; provided that nothing herein shall preclude Executive from continuing to     --------                                                                serve on the board of directors or trustees of any business corporation or anycharitable organization on which he currently serves and which is identified onExhibit A hereto                                                                                2or, subject to the prior approval of the COO, from accepting appointment to anyadditional directorships or trusteeships, provided in each case, and in theaggregate, that such activities do not interfere with the performance ofExecutive's duties hereunder or conflict with Section 8.          3.   Base Salary. While employed hereunder, the Company shall pay               -----------                                                 Executive a base salary (the 'Base Salary') at the annual rate of $150,000,payable in regular installments in accordance with the Company's usual paymentpractices.  Executive shall be entitled to such increases in Executive's BaseSalary, if any, as may be determined from time to time in the sole discretion ofthe Board.          4.   Commission; Annual Bonus.               ------------------------           a.   Commission.  With respect to each calendar year while employed               ----------                                                    hereunder, Executive shall be eligible to earn a sales commission (a'Commission') at an annual rate of $100,000, based upon Executive's achievementof certain sales quota, as established by the Board (or a designated committeethereof).  The Commission shall be payable quarterly, annually, or pursuant tosuch other schedule as the Board (or its designated committee) may in itsdiscretion determine, but in no event shall such Commission be payable lessfrequently than on an annual basis.          b.   Annual Bonus.  With respect to each calendar year while employed               ------------                                                    hereunder, Executive shall be eligible to earn an annual bonus award (an 'AnnualBonus') pursuant to an annual incentive plan to be established by the Board.The Annual Bonus shall be payable in accordance with the terms of such incentiveplan.          5.   Employee Benefits.  The Company shall provide Executive during               -----------------                                             the term of his employment hereunder with coverage under all employee pensionand welfare benefit programs, plans and practices in accordance with the termsthereof, which the Company generally makes available to its senior executives.Executive shall also be entitled to such number of paid vacation and sick leavein each calendar year as established under the Company's policies as in effectfrom time to time, which shall be taken at such times as are consistent withExecutive's responsibilities hereunder.          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 tosuch duties and responsibilities.  The Company will reimburse Executive for allsuch expenses upon presentation by Executive from time to time of appropriatelyitemized and approved (consistent with the Company's policy) accounts of suchexpenditures.          7.   Termination.  The Executive's employment hereunder may be               -----------                                              terminated by either party at any time and for any reason; provided that                                                           --------     Executive will be required to give the Company at least 90 days advance writtennotice of any resignation of Executive's employment.  Notwithstanding any otherprovision of this Agreement, the provisions of this 
                                                                                3Section 7 shall exclusively govern Executive's rights upon termination ofemployment with the Company and its affiliates.               a.   By the Company For Cause                    ------------------------               (i) The Executive's employment hereunder may be terminated by theCompany for Cause (as defined below) or upon 90 days prior written notice, byExecutive without Good Reason.               (ii) For purposes of this Agreement, 'Cause' shall mean (i) theExecutive's willful and continued failure to perform his or her duties withrespect to the Company or its subsidiaries after demand by his or her superiorfor substantial performance is made or delivered, (ii) willful misconduct by theExecutive involving dishonesty or breach of trust in connection with theExecutive's employment, (iii) indictment for any felony or misdemeanor involvingmoral turpitude, (iv) any material breach of the Executive's restrictivecovenants as provided in Section 8 of this Agreement, or (v) violation of anywritten Company policy.               (iii) If Executive's employment is terminated by the Company forCause or by Executive without Good Reason, Executive shall be entitled toreceive:               (A) the Base Salary through the date of termination;               (B) any Annual Bonus and/or Commission earned but unpaid as of          the date of termination for any previously completed calendar year;               (C) reimbursement for any unreimbursed business expenses properly          incurred by Executive in accordance with Company policy prior to the          date of Executive's termination; and               (D) such Employee Benefits, if any, as to which Executive may be          entitled under the employee benefit plans of the Company (the amounts          described in clauses (A) through (D) hereof being referred to as the          'Accrued Rights').          Following such termination of Executive's employment by the Companyfor Cause, except as set forth in this Section 7(a),  Executive shall have nofurther rights to any compensation or any other benefits under this Agreement.               b.   Disability or Death.                    -------------------                (i) The Executive's employment hereunder shall terminate uponExecutive's death and if Executive becomes physically or mentally incapacitatedand is therefore unable for a period of six (6) consecutive months or for anaggregate of nine (9) months in any twenty-four (24) consecutive month period toperform Executive's duties (such incapacity is hereinafter referred to as'Disability'). Any question as to the existence of the Disability of
                                                                                4Executive as to which Executive and the Company cannot agree shall be determinedin writing by a qualified independent physician mutually acceptable to Executiveand the Company. If Executive and the Company cannot agree as to a qualifiedindependent physician, each shall appoint such a physician and those twophysicians shall select a third who shall make such determination in writing.The determination of Disability made in writing to the Company and Executiveshall be final and conclusive for all purposes of the Agreement.               (ii) Upon termination of Executive's employment hereunder foreither 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 and/or Commission 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 and/or Commission would          have otherwise been payable had the Executive's employment not          terminated.          Following Executives termination of employment due to death orDisability, except as set forth in this Section 7(b), Executive shall have nofurther 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 theCompany without Cause or by Executive's resignation for Good Reason.               (ii) For purposes of this Agreement, 'Good Reason' shall mean:(x) a reduction in the Executive's base salary (other than any general salaryreduction affecting at least the majority of salaried employees of the Company),(y) a material and adverse reduction in the Executive's duties andresponsibilities, or (z) a transfer of the Executive's primary workplace by morethan fifty (50) miles from the current workplace, other than as approved by anyof the senior executives of the Company.Notwithstanding the foregoing, none of the events described in clauses  (x) or(y) of this Section 7(c)(ii) shall constitute Good Reason unless Executive shall                                                          ------                have notified the Company in writing describing the events which constitute GoodReason and then only if the Company shall have failed to cure such event withinthirty (30) days after the Company's receipt of such written notice.
                                                                                5               (iii) If Executive's employment is terminated by the Companywithout Cause (other than by reason of death or Disability) or if Executiveresigns for Good Reason, Executive shall be entitled to receive:               (A)  the Accrued Rights;               (B) the Commission that the Executive would have been entitled to          receive pursuant to Section 4(a) 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          Commission would have otherwise been payable had the Executive's          employment not terminated; and               (C) subject to Executive's continued compliance with the          provisions of Section 8, continued payment of the Base Salary until          twelve (12) months after the date of such termination; 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.          Following Executive's termination of employment by the Company withoutCause (other than by reason of Executive's death or Disability) or byExecutive's resignation for Good Reason, except as set forth in this Section7(c), Executive shall have no further rights to any compensation or any otherbenefits under this Agreement.                d. Notice of Termination. Any purported termination of                  ---------------------                               employment by the Company or by Executive (other than due to Executive's death)shall be communicated by written Notice of Termination to the other party heretoin accordance with Section 11(h) hereof. For purposes of this Agreement, a'Notice of Termination' shall mean a notice which shall indicate the specifictermination provision in this Agreement relied upon and shall set forth inreasonable detail the facts and circumstances claimed to provide a basis fortermination of employment under the provision so indicated.          8.   Nondisclosure of Confidential Information; Non-Competition.  (a)               ----------------------------------------------------------       At any time during or after Executive's employment with the Company, Executiveshall not, without the prior written consent of the Company, use, divulge,disclose or make accessible to any other person, firm, partnership, corporationor other entity any Confidential Information (as hereinafter defined) pertainingto the business of the Company or any of its subsidiaries, except (i) whileemployed by the Company, in the business of and for the benefit of the Company,or (ii) when required to do so by a court of competent jurisdiction, by anygovernmental agency having supervisory authority over the business of theCompany, or by any administrative body or legislative body (including acommittee thereof) with jurisdiction to order Executive to divulge, disclose ormake accessible such information.  For purposes of this Section 8(a),'Confidential Information' shall mean non-public information concerning thefinancial data, strategic business plans, and other non-public, proprietary andconfidential information of the Company, its subsidiaries, Ripplewood HoldingsL.L.C. or their respective affiliates as in existence as of the
                                                                                6date of Executive's termination of employment that, in any case, is nototherwise available to the public (other than by Executive's breach of the termshereof).          (b)  As Vice President of Sales, Executive will acquire knowledge ofConfidential Information and trade secrets.  Executive acknowledges that theConfidential Information and trade secrets which the Company has provided andwill provide to him could play a significant role were he to directly toindirectly be engaged in any business in Competition with the Company or itssubsidiaries.  During the period of his employment hereunder and for one yearthereafter, Executive agrees that, without the prior written consent of theCompany, (A) he will not, directly or indirectly, either as principal, manager,agent, consultant, officer, stockholder, partner, investor, lender or employeeor in any other capacity, carry on, be engaged in or have any financial interestin (other than an ownership position of less than 5 percent in any company whoseshares are publicly traded), any business, which is in Competition (ashereinafter defined) with the existing business of the Company or itssubsidiaries and (B) he shall not, on his own behalf or on behalf of any person,firm or company, directly or indirectly, solicit or offer employment to anyperson who has been employed by the Company or its subsidiaries at any timeduring the 12 months immediately preceding such solicitation to the extent thatExecutive would use or inevitably use Confidential Information or trade secretsor that would otherwise constitute unfair competition.          (c)  For purposes of this Section 8, a business shall be deemed to bein Competition with the Company or its subsidiaries if it is engaged in or hastaken concrete steps toward engaging in the business of research anddevelopment, designing, manufacturing, marketing, distributing, or servicing orselling components as used in microwave radios, products and equipment, whetherin existence or in development, relating to microwave communications (includingunlicensed spread spectrum radio, licensed microwave radio, wireless ethernetbridge, and fixed wireless (e.g., wireless local loop, point-to-point, point-to-multipoint)), as carried on by the Company or its affiliates as of the date ofExecutive's termination of employment, in all cities, counties, states andcountries in which the business of the Company or its affiliates is then beingconducted or its products are being sold.          (d)  The results and proceeds of Executive's services hereunder,including, without limitation, any works of authorship resulting fromExecutive's services during Executive's employment with the Company and/or anyof the Company's affiliates and any works in progress, will be works-made-forhire and the Company will be deemed the sole owner throughout the universe ofany and all rights of whatsoever nature therein, whether or not now or hereafterknown, existing, contemplated, recognized or developed, with the right to usethe same in perpetuity in any manner the Company determines in its solediscretion without any further payment to Executive whatsoever.  If, for anyreason, any of such results and proceeds will not legally be a work-for-hireand/or there are any rights which do not accrue to the Company under thepreceding sentence, then Executive hereby irrevocably assigns and agrees toassign any and all of Executive's right, title and interest thereto, including,without limitation, any and all copyrights, patents, trade secrets, trademarksand/or other rights of whatsoever nature therein, whether or not now orhereafter known, existing, contemplated, recognized or developed, to theCompany, and the Company will have the right to use the same in perpetuitythroughout the
                                                                                7universe in any manner the Company determines without any further payment toExecutive whatsoever. Executive will, from time to time as may be requested bythe Company, (i) during the term of Executive's employment without furtherconsideration, and (ii) thereafter at Executive's then current hourly rate, doany and all things which the Company may deem useful or desirable to establishor document the Company's exclusive ownership of any and all rights in any suchresults and proceeds, including, without limitation, the execution ofappropriate copyright and/or patent applications or assignments. To the extentExecutive has any rights in the results and proceeds of Executive's servicesthat cannot be assigned in the manner described above, Executive unconditionallyand irrevocably waives the enforcement of such rights. This subsection issubject to and will not be deemed to limit, restrict, or constitute any waiverby the Company of any rights of ownership to which the Company may be entitledby operation of law by virtue of the Company being Executive's employer. ThisSection does not apply to an invention that qualifies as a nonassignableinvention under Section 2870 of the California Labor Code, which applies to anyinvention for which no equipment, supplies, facilities or ConfidentialInformation was used, which does not (i) relate to the business of the Company;(ii) relate to the Company's actual or demonstrable anticipated research ordevelopment or (iii) result from any work performed by Executive for theCompany. This confirms that Executive has been notified of his rights underSection 2870 of the California Labor Code.          (d)  Executive and the Company agree that this covenant not to competeis a reasonable covenant under the circumstances, and further agree that if inthe opinion of any court of competent jurisdiction such restraint is notreasonable in any respect, such court shall have the right, power and authorityto excise or modify such provision or provisions of this covenant as to thecourt shall appear not reasonable and to enforce the remainder of the covenantas so amended.  Executive agrees that any breach of the covenants contained inthis Section 8 would irreparably injure the Company.  Accordingly, Executiveagrees that the Company may, in addition to pursuing any other remedies it mayhave in law or in equity, cease making any payments otherwise required by thisAgreement and obtain an injunction against Executive from any court havingjurisdiction over the matter restraining any further violation of this Agreementby Executive.          9.   Specific Performance.  Executive acknowledges and agrees that the               --------------------                                             Company's remedies at law for a breach or threatened breach of any of theprovisions of Section 8 would be inadequate and, in recognition of this fact,Executive agrees that, in the event of such a breach or threatened breach, inaddition to any remedies at law, the Company, without posting any bond, shall beentitled to cease making any payments or providing any benefit otherwiserequired by this Agreement and obtain equitable relief in the form of specificperformance, temporary restraining order, temporary or permanent injunction orany other equitable remedy which may then be available.          10.  Miscellaneous.               -------------                     a. Governing Law. This Agreement shall be governed by and                       -------------                                          construed in accordance with the laws of the State of New York, without regardto conflicts of laws principles thereof.
                                                                                8          b.        Entire Agreement/Amendments. This Agreement contains the                     ---------------------------entire understanding of the parties with respect to the employment of Executiveby the Company. There are no restrictions, agreements, promises, warranties,covenants or undertakings between the parties with respect to the subject matterherein other than those expressly set forth herein. This Agreement may not bealtered, modified, or amended except by written instrument signed by the partieshereto. This Agreement supercedes all prior agreements and understandings(including verbal agreements) between Executive and the Company and/or itsaffiliates regarding the terms and conditions of Executive's employment with theCompany and/or its affiliates.          c.        No Waiver.  The failure of a party to insist upon strict                    ---------                                               adherence to any term of this Agreement on any occasion shall not be considereda waiver of such party's rights or deprive such party of the right thereafter toinsist upon strict adherence to that term or any other term of this Agreement.          d.        Severability.  In the event that any one or more of the                    ------------                                           provisions of this Agreement shall be or become invalid, illegal orunenforceable in any respect, the validity, legality and enforceability of theremaining provisions of this Agreement shall not be affected thereby.          e.        Assignment.  This Agreement shall not be assignable by                    ----------                                            Executive. This Agreement may be assigned by the Company to a company which is asuccessor in interest to substantially all of the business operations of theCompany.  Such assignment shall become effective when the Company notifies theExecutive of such assignment or at such later date as may be specified in suchnotice.  Upon such assignment, the rights and obligations of the Companyhereunder shall become the rights and obligations of such successor company,provided that any assignee expressly assumes the obligations, rights and--------                                                                privileges of this Agreement.          f.        Mitigation.  Executive shall be required to mitigate the                    ----------                                              amount of any payment provided for pursuant to this Agreement by seeking otheremployment, taking into account the provisions of Section 8 of this Agreement.Anything in this Agreement to the contrary notwithstanding, in the event thatExecutive provides services for pay to anyone other than the Company or any ofits affiliates from the date Executive's employment hereunder is terminateduntil twelve months thereafter, the amounts paid to Executive during such periodpursuant to this Agreement shall be reduced by the amounts of salary, bonus orother compensation earned by Executive during such period as a result ofExecutive's performing such services (regardless of when such earned amounts areactually paid to Executive).          g.        Successors; Binding Agreement.  This Agreement shall inure                    -----------------------------                             to the benefit of and be binding upon personal or legal representatives,executors, administrators, successors, heirs, distributes, devises and legatees.          h.        Notice.  For the purpose of this Agreement, notices and all                    ------                                                     other communications provided for in the Agreement shall be in writing and shallbe deemed to have been duly given when delivered or mailed by United Statesregistered mail, return receipt
                                                                                9requested, postage prepaid, addressed to the respective addresses set forthbelow Agreement, or to such other address as either party may have furnished tothe other in writing in accordance herewith, except that notice of change ofaddress shall be effective only upon receipt.     If to the Company:     Western Multiplex Corporation     1196 Borregas Ave.     Sunnyvale, California  94089     Attention: Amir Zoufonoun     If to Executive:     To the most recent address of Executive set forth in the personnel records     of the Company.          i.        Withholding Taxes.  The Company may withhold from any                    -----------------                                    amounts payable under this Agreement such Federal, state and local taxes as maybe required to be withheld pursuant to any applicable law or regulation.          j.        Counterparts.  This Agreement may be signed in counterparts,                    ------------                                                each of which shall be an original, with the same effect as if the signaturesthereto and hereto were upon the same instrument.
                                                                               10          IN WITNESS WHEREOF, the parties hereto have duly executed thisAgreement as of the day and year first above written.                                             WESTERN MULTIPLEX CORPORATION                                                                                     By: /s/ Amir Zoufounoun                                                      -----------------------------                                                Name: Amir Zoufonoun                                                Title: President                                                                                                                             EXECUTIVE:                                                                                        /s/  Frederick Corsentino                                                -----------------------------                                                Frederick Corsentino                                                                                        4515 Carlyle Ct.  # 3301                                                -----------------------------                                                                                        Santa Clara, CA  95054                                                -----------------------------                                                [Address of Executive]