{"id":39721,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-western-multiplex-corp-and-john-h-saefke.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-western-multiplex-corp-and-john-h-saefke","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-western-multiplex-corp-and-john-h-saefke.html","title":{"rendered":"Employment Agreement &#8211; Western Multiplex Corp. and John H. Saefke"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n     EMPLOYMENT AGREEMENT (the 'Agreement') dated February 28, 2000 by and\nbetween Western Multiplex Corporation, a Delaware Company (the 'Company') and\nJohn H. Saefke (the 'Executive').\n\n     WHEREAS, the Company considers it essential to its best interests and the\nbest interests of its stockholders to foster the continued employment of\nExecutive by the Company during the term of this Agreement and Executive is\nwilling to accept and continue Executive's employment on the terms hereinafter\nset forth in this Agreement;\n\n     NOW, THEREFORE, in consideration of the premises and mutual covenants\nherein and for other good and valuable consideration, the parties agree as\nfollows:\n\n     1. Term of Employment; Executive Representation.\n\n     a. Employment Term. Executive's term of employment under this Agreement\nshall commence on the date hereof and, subject to the terms hereof, Executive\nand the Company agree and acknowledge that Executive's employment with the\nCompany constitutes 'at-will' employment and that this Agreement may be\nterminated at any time by the Company or Executive; provided, however, that any\ntermination of employment by Executive (other than for death or Permanent\nDisability) may only be made upon 90 days prior written notice to the Company.\n\n     b. Executive Representation. Executive hereby represents to the Company\nthat the execution and delivery of this Agreement by Executive and the Company\nand the performance by Executive of the Executive's duties hereunder shall not\nconstitute a breach of, or otherwise contravene, the terms of any employment\nagreement or other agreement or policy to which Executive is a party or\notherwise bound.\n\n     2. Position.\n\n     a. While employed hereunder, Executive shall serve as the Company's Vice\nPresident, International Sales. In such position, Executive shall have such\nduties and authority as shall be determined from time to time by the chief\noperating officer of the Company (or his designee) (the 'COO').\n\n     b. While employed hereunder, Executive will devote Executive's full\nbusiness time and best efforts to the performance of Executive's duties\nhereunder and will not engage in any other business, profession or occupation\nfor compensation or otherwise which would conflict with the rendition of such\nservices either directly or indirectly, without the prior written consent of the\nCOO; provided that nothing herein shall preclude Executive from continuing to\nserve on the board of directors or trustees of any business corporation or any\n\n \n                                                                               2\n\n\n\ncharitable organization on which he currently serves and which is identified on\nExhibit A hereto or, subject to the prior approval of the COO, from accepting\nappointment to any additional directorships or trusteeships, provided in each\ncase, and in the aggregate, that such activities do not interfere with the\nperformance of Executive's duties hereunder or conflict with Section 8.\n\n     3. Base Salary. While employed hereunder, the Company shall pay Executive a\nbase salary (the 'Base Salary') at the annual rate of $110,250, payable in\nregular installments in accordance with the Company's usual payment practices.\nExecutive shall be entitled to such increases in Executive's Base Salary, if\nany, as may be determined from time to time in the sole discretion of the Board.\n\n     4. Annual Bonus. With respect to each calendar year while employed\nhereunder, Executive shall be eligible to earn an annual bonus award (an 'Annual\nBonus') pursuant to an annual incentive plan to be established by the Board.\n\n     5. Employee Benefits. The Company shall provide Executive during the term\nof his employment hereunder with coverage under all employee pension and welfare\nbenefit programs, plans and practices in accordance with the terms thereof,\nwhich the Company generally makes available to its senior executives. Executive\nshall also be entitled to such number of paid vacation and sick leave in each\ncalendar year as established under the Company's policies as in effect from time\nto time, which shall be taken at such times as are consistent with Executive's\nresponsibilities hereunder.\n\n     6. Business Expenses. Executive is authorized to incur reasonable expenses\nin carrying out his duties and responsibilities under this Agreement, including,\nwithout limitation, expenses for travel and similar items related to such duties\nand responsibilities. The Company will reimburse Executive for all such expenses\nupon presentation by Executive from time to time of appropriately itemized and\napproved (consistent with the Company's policy) accounts of such expenditures.\n\n     7. Termination. The Executive's employment hereunder may be terminated by\neither party at any time and for any reason; provided that Executive will be\nrequired to give the Company at least 90 days advance written notice of any\nresignation of Executive's employment. Notwithstanding any other provision of\nthis Agreement, the provisions of this Section 7 shall exclusively govern\nExecutive's rights upon termination of employment with the Company and its\naffiliates.\n\n     a. By the Company For Cause\n\n     (i) The Executive's employment hereunder may be terminated by the Company\nfor Cause (as defined below) or upon 90 days prior written notice, by Executive\nwithout Good Reason.\n\n     (ii) For purposes of this Agreement, 'Cause' shall mean (i) the Executive's\nwillful and continued failure to perform his or her duties with respect to the\n\n \n                                                                               3\n\n\nCompany or its subsidiaries after demand by his or her superior for substantial\nperformance is made or delivered, (ii) willful misconduct by the Executive\ninvolving dishonesty or breach of trust in connection with the Executive's\nemployment, (iii) indictment for any felony or misdemeanor involving moral\nturpitude, (iv) any material breach of the Executive's restrictive covenants as\nprovided in Section 8 of this Agreement, or (v) violation of any written Company\npolicy.\n\n     (iii) If Executive's employment is terminated by the Company for Cause or\nby Executive without Good Reason, Executive shall be entitled to receive:\n\n          (A) the Base Salary through the date of termination;\n\n          (B) any Annual Bonus earned but unpaid as of the date of termination\n     for any previously completed calendar year;\n\n          (C) reimbursement for any unreimbursed business expenses properly\n     incurred by Executive in accordance with Company policy prior to the date\n     of Executive's termination; and\n\n          (D) such Employee Benefits, if any, as to which Executive may be\n     entitled under the employee benefit plans of the Company (the amounts\n     described in clauses (A) through (D) hereof being referred to as the\n     'Accrued Rights').\n\n     Following such termination of Executive's employment by the Company for\nCause, except as set forth in this Section 7(a), Executive shall have no further\nrights to any compensation or any other benefits under this Agreement.\n\n     b. Disability or Death.\n\n     (i) The Executive's employment hereunder shall terminate upon Executive's\ndeath and if Executive becomes physically or mentally incapacitated and is\ntherefore unable for a period of six (6) consecutive months or for an aggregate\nof nine (9) months in any twenty-four (24) consecutive month period to perform\nExecutive's duties (such incapacity is hereinafter referred to as 'Disability').\nAny question as to the existence of the Disability of Executive as to which\nExecutive and the Company cannot agree shall be determined in writing by a\nqualified independent physician mutually acceptable to Executive and the\nCompany. If Executive and the Company cannot agree as to a qualified independent\nphysician, each shall appoint such a physician and those two physicians shall\nselect a third who shall make such determination in writing. The determination\nof Disability made in writing to the Company and Executive shall be final and\nconclusive for all purposes of the Agreement.\n\n     (ii) Upon termination of Executive's employment hereunder for either\nDisability or death, Executive or Executive's estate (as the case may be) shall\nbe entitled to receive:\n\n \n                                                                               4\n\n\n          (A) the Accrued Rights; and\n\n          (B) a pro rata portion of any Annual Bonus that the Executive would\n     have been entitled to receive pursuant to Section 4 hereof in such year\n     based upon the percentage of the calendar year that shall have elapsed\n     through the date of Executive's termination of employment, payable when\n     such Annual Bonus would have otherwise been payable had the Executive's\n     employment not terminated.\n\n     Following Executives termination of employment due to death or Disability,\nexcept as set forth in this Section 7(b), Executive shall have no further rights\nto any compensation or any other benefits under this Agreement.\n\n     c. By the Company Without Cause or Resignation by Executive for Good\nReason.\n\n     (i) The Executive's employment hereunder may be terminated by the Company\nwithout Cause or by Executive's resignation for Good Reason.\n\n     (ii) For purposes of this Agreement, 'Good Reason' shall mean: (x) a\nreduction in the Executive's base salary (other than any general salary\nreduction affecting at least the majority of salaried employees of the Company),\n(y) a material and adverse reduction in the Executive's duties and\nresponsibilities, or (z) a transfer of the Executive's primary workplace by more\nthan fifty (50) miles from the current workplace, other than as approved by any\nof the senior executives of the Company.\n\nNotwithstanding the foregoing, none of the events described in clauses (x) or\n(y) of this Section 7(c)(ii) shall constitute Good Reason unless Executive shall\nhave notified the Company in writing describing the events which constitute Good\nReason and then only if the Company shall have failed to cure such event within\nthirty (30) days after the Company's receipt of such written notice.\n\n     (iii) If Executive's employment is terminated by the Company without Cause\n(other than by reason of death or Disability) or if Executive resigns for Good\nReason, Executive shall be entitled to receive:\n\n          (A) the Accrued Rights; and\n\n          (B) subject to Executive's continued compliance with the provisions of\n     Section 8, continued payment of the Base Salary until twelve (12) months\n     after the date of such termination; provided that the aggregate amount\n     described in this clause (B) shall be reduced by the present value of any\n     other cash severance or termination benefits payable to Executive under any\n     other plans, programs or arrangements of the Company or its affiliates.\n\n \n                                                                               5\n\n\n     Following Executive's termination of employment by the Company without\nCause (other than by reason of Executive's death or Disability) or by\nExecutive's resignation for Good Reason, except as set forth in this Section\n7(c), Executive shall have no further rights to any compensation or any other\nbenefits under this Agreement.\n\n     d. Notice of Termination. Any purported termination of employment by the\nCompany or by Executive (other than due to Executive's death) shall be\ncommunicated by written Notice of Termination to the other party hereto in\naccordance with Section 11(h) hereof. For purposes of this Agreement, a 'Notice\nof Termination' shall mean a notice which shall indicate the specific\ntermination provision in this Agreement relied upon and shall set forth in\nreasonable detail the facts and circumstances claimed to provide a basis for\ntermination of employment under the provision so indicated.\n\n     8. Nondisclosure of Confidential Information; Non-Competition. (a) At any\ntime during or after Executive's employment with the Company, Executive shall\nnot, without the prior written consent of the Company, use, divulge, disclose or\nmake accessible to any other person, firm, partnership, corporation or other\nentity any Confidential Information (as hereinafter defined) pertaining to the\nbusiness of the Company or any of its subsidiaries, except (i) while employed by\nthe Company, in the business of and for the benefit of the Company, or (ii) when\nrequired to do so by a court of competent jurisdiction, by any governmental\nagency having supervisory authority over the business of the Company, or by any\nadministrative body or legislative body (including a committee thereof) with\njurisdiction to order Executive to divulge, disclose or make accessible such\ninformation. For purposes of this Section 8(a), 'Confidential Information' shall\nmean non-public information concerning the financial data, strategic business\nplans, and other non-public, proprietary and confidential information of the\nCompany, its subsidiaries, Ripplewood Holdings L.L.C. or their respective\naffiliates as in existence as of the date of Executive's termination of\nemployment that, in any case, is not otherwise available to the public (other\nthan by Executive's breach of the terms hereof).\n\n     (b) As Vice President, International Sales, Executive will acquire\nknowledge of Confidential Information and trade secrets. Executive acknowledges\nthat the Confidential Information and trade secrets which the Company has\nprovided and will provide to him could play a significant role were he to\ndirectly to indirectly be engaged in any business in Competition with the\nCompany or its subsidiaries. During the period of his employment hereunder and\nfor one year thereafter, Executive agrees that, without the prior written\nconsent of the Company, (A) he will not, directly or indirectly, either as\nprincipal, manager, agent, consultant, officer, stockholder, partner, investor,\nlender or employee or in any other capacity, carry on, be engaged in or have any\nfinancial interest in (other than an ownership position of less than 5 percent\nin any company whose shares are publicly traded), any business, which is in\nCompetition (as hereinafter defined) with the existing business of the Company\nor its subsidiaries and (B) he shall not, on his own behalf or on behalf of any\nperson, firm or company, directly or indirectly, solicit or offer employment to\nany person who has been employed by the Company or its subsidiaries at any time\nduring the 12 months immediately preceding such solicitation to the extent that\nExecutive would use or inevitably use Confidential Information or trade secrets\nor that would otherwise constitute unfair competition.\n\n \n                                                                               6\n\n\n     (c) For purposes of this Section 8, a business shall be deemed to be in\nCompetition with the Company or its subsidiaries if it is engaged in or has\ntaken concrete steps toward engaging in the business of research and\ndevelopment, designing, manufacturing, marketing, distributing, or servicing or\nselling components as used in microwave radios, products and equipment, whether\nin existence or in development, relating to microwave communications (including\nunlicensed spread spectrum radio, licensed microwave radio, wireless ethernet\nbridge, and fixed wireless (e.g., wireless local loop, point-to-point,\npoint-to-multipoint)), as carried on by the Company or its affiliates as of the\ndate of Executive's termination of employment, in all cities, counties, states\nand countries in which the business of the Company or its affiliates is then\nbeing conducted or its products are being sold.\n\n     (d) The results and proceeds of Executive's services hereunder, including,\nwithout limitation, any works of authorship resulting from Executive's services\nduring Executive's employment with the Company and\/or any of the Company's\naffiliates and any works in progress, will be works-made-for hire and the\nCompany will be deemed the sole owner throughout the universe of any and all\nrights of whatsoever nature therein, whether or not now or hereafter known,\nexisting, contemplated, recognized or developed, with the right to use the same\nin perpetuity in any manner the Company determines in its sole discretion\nwithout any further payment to Executive whatsoever. If, for any reason, any of\nsuch results and proceeds will not legally be a work-for-hire and\/or there are\nany rights which do not accrue to the Company under the preceding sentence, then\nExecutive hereby irrevocably assigns and agrees to assign any and all of\nExecutive's right, title and interest thereto, including, without limitation,\nany and all copyrights, patents, trade secrets, trademarks and\/or other rights\nof whatsoever nature therein, whether or not now or hereafter known, existing,\ncontemplated, recognized or developed, to the Company, and the Company will have\nthe right to use the same in perpetuity throughout the universe in any manner\nthe Company determines without any further payment to Executive whatsoever.\nExecutive will, from time to time as may be requested by the Company, (i) during\nthe term of Executive's employment without further consideration, and (ii)\nthereafter at Executive's then current hourly rate, do any and all things which\nthe Company may deem useful or desirable to establish or document the Company's\nexclusive ownership of any and all rights in any such results and proceeds,\nincluding, without limitation, the execution of appropriate copyright and\/or\npatent applications or assignments. To the extent Executive has any rights in\nthe results and proceeds of Executive's services that cannot be assigned in the\nmanner described above, Executive unconditionally and irrevocably waives the\nenforcement of such rights. This subsection is subject to and will not be deemed\nto limit, restrict, or constitute any waiver by the Company of any rights of\nownership to which the Company may be entitled by operation of law by virtue of\nthe Company being Executive's employer. This Section does not apply to an\ninvention that qualifies as a nonassignable invention under Section 2870 of the\nCalifornia Labor Code, which applies to any invention for which no equipment,\nsupplies, facilities or Confidential Information was used, which does not (i)\nrelate to the business of the Company; (ii) relate to the Company's actual or\ndemonstrable anticipated research or development or (iii) result from any work\nperformed by Executive for the Company. This confirms that Executive has been\nnotified of his rights under Section 2870 of the California Labor Code.\n\n \n                                                                               7\n\n\n     (d) Executive and the Company agree that this covenant not to compete is a\nreasonable covenant under the circumstances, and further agree that if in the\nopinion of any court of competent jurisdiction such restraint is not reasonable\nin any respect, such court shall have the right, power and authority to excise\nor modify such provision or provisions of this covenant as to the court shall\nappear not reasonable and to enforce the remainder of the covenant as so\namended. Executive agrees that any breach of the covenants contained in this\nSection 8 would irreparably injure the Company. Accordingly, Executive agrees\nthat the Company may, in addition to pursuing any other remedies it may have in\nlaw or in equity, cease making any payments otherwise required by this Agreement\nand obtain an injunction against Executive from any court having jurisdiction\nover the matter restraining any further violation of this Agreement by\nExecutive.\n\n     9. Specific Performance. Executive acknowledges and agrees that the\nCompany's remedies at law for a breach or threatened breach of any of the\nprovisions of Section 8 would be inadequate and, in recognition of this fact,\nExecutive agrees that, in the event of such a breach or threatened breach, in\naddition to any remedies at law, the Company, without posting any bond, shall be\nentitled to cease making any payments or providing any benefit otherwise\nrequired by this Agreement and obtain equitable relief in the form of specific\nperformance, temporary restraining order, temporary or permanent injunction or\nany other equitable remedy which may then be available.\n\n     10. Miscellaneous.\n\n     a. Governing Law. This Agreement shall be governed by and construed in\naccordance with the laws of the State of New York, without regard to conflicts\nof laws principles thereof.\n\n     b. Entire Agreement\/Amendments. This Agreement contains the entire\nunderstanding of the parties with respect to the employment of Executive by the\nCompany. There are no restrictions, agreements, promises, warranties, covenants\nor undertakings between the parties with respect to the subject matter herein\nother than those expressly set forth herein. This Agreement may not be altered,\nmodified, or amended except by written instrument signed by the parties hereto.\nThis Agreement supercedes all prior agreements and understandings (including\nverbal agreements) between Executive and the Company and\/or its affiliates\nregarding the terms and conditions of Executive's employment with the Company\nand\/or its affiliates\n\n     c. No Waiver. The failure of a party to insist upon strict adherence to any\nterm of this Agreement on any occasion shall not be considered a waiver of such\nparty's rights or deprive such party of the right thereafter to insist upon\nstrict adherence to that term or any other term of this Agreement.\n\n     d. Severability. In the event that any one or more of the provisions of\nthis Agreement shall be or become invalid, illegal or unenforceable in any\nrespect, the validity, legality and enforceability of the remaining provisions\nof this Agreement shall not be affected thereby.\n\n \n                                                                               8\n\n\n     e. Assignment. This Agreement shall not be assignable by Executive. This\nAgreement may be assigned by the Company to a company which is a successor in\ninterest to substantially all of the business operations of the Company. Such\nassignment shall become effective when the Company notifies the Executive of\nsuch assignment or at such later date as may be specified in such notice. Upon\nsuch assignment, the rights and obligations of the Company hereunder shall\nbecome the rights and obligations of such successor company, provided that any\nassignee expressly assumes the obligations, rights and privileges of this\nAgreement.\n\n     f. Mitigation. Executive shall be required to mitigate the amount of any\npayment provided for pursuant to this Agreement by seeking other employment,\ntaking into account the provisions of Section 8 of this Agreement. Anything in\nthis Agreement to the contrary notwithstanding, in the event that Executive\nprovides services for pay to anyone other than the Company or any of its\naffiliates from the date Executive's employment hereunder is terminated until\ntwelve months thereafter, the amounts paid to Executive during such period\npursuant to this Agreement shall be reduced by the amounts of salary, bonus or\nother compensation earned by Executive during such period as a result of\nExecutive's performing such services (regardless of when such earned amounts are\nactually paid to Executive).\n\n     g. Successors; Binding Agreement. This Agreement shall inure to the benefit\nof and be binding upon personal or legal representatives, executors,\nadministrators, successors, heirs, distributes, devises and legatees.\n\n     h. Notice. For the purpose of this Agreement, notices and all other\ncommunications provided for in the Agreement shall be in writing and shall be\ndeemed to have been duly given when delivered or mailed by United States\nregistered mail, return receipt requested, postage prepaid, addressed to the\nrespective addresses set forth below Agreement, or to such other address as\neither party may have furnished to the other in writing in accordance herewith,\nexcept that notice of change of address shall be effective only upon receipt.\n\n     If to the Company:\n\n     Western Multiplex Corporation\n     1196 Borregas Ave.\n     Sunnyvale, California  94089\n     Attention: Amir Zoufonoun\n\n     If to Executive:\n\n     To the most recent address of Executive set forth in the personnel\n     records of the Company.\n\n     i. Withholding Taxes. The Company may withhold from any amounts payable\nunder this Agreement such Federal, state and local taxes as may be required to\nbe withheld pursuant to any applicable law or regulation.\n\n \n                                                                               9\n\n\n     j. Counterparts. This Agreement may be signed in counterparts, each of\nwhich shall be an original, with the same effect as if the signatures thereto\nand hereto were upon the same instrument.\n\n     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as\nof the day and year first above written. \n\n\n                                          WESTERN MULTIPLEX CORPORATION\n\n\n                                          By: \/s\/  Jeffrey M. Hendren\n                                              ----------------------------------\n                                              Name: Jeffrey M. Hendren\n                                              Title: Vice President\n                                          \n                                          \n                                          \n                                          EXECUTIVE:\n                                          \n                                              \/s\/  John H. Saefke\n                                              ----------------------------------\n                                              John H. Saefke\n                                          \n                                              53 Woodhill Drive\n                                              Redwood City, CA  94061\n                                              [Address of Executive]\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9318],"corporate_contracts_industries":[9516],"corporate_contracts_types":[9539,9544],"class_list":["post-39721","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-western-multiplex-corp","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39721","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39721"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39721"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39721"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39721"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}