EXHIBIT 10.41a
PCTEL, INC.
MARTIN H. SINGER AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This Agreement is entered into effective as of July 1, 2003 (the
"Effective Date") by and between PCTEL, Inc. (the "Company") and Martin H.
Singer ("Executive").
1. Superceding Agreement. This Agreement shall supercede the Employment
Agreement, dated effective as of October 17, 2001, between Executive and the
Company and together with the other agreements identified in Section 16 below,
shall represent the entire agreement and understanding between the parties as to
the subject matter herein.
2. Duties and Scope of Employment.
(a) Positions and Duties. Executive will continue to serve as
Chief Executive Officer of the Company, a position Executive has held since
October 17, 2001. Executive will render such business and professional services
in the performance of his duties, consistent with Executive's position within
the Company, as shall reasonably be assigned to him by the Company's Board of
Directors (the "Board").
(b) Board Membership. Executive will continue to serve as a
member and Chairman of the Board, subject to any required Board and/or
stockholder approval.
(c) Obligations. During the Employment Term (as defined
below), Executive will perform his duties faithfully and to the best of his
ability and will devote his full business efforts and time to the Company. For
the duration of Executive's employment with the Company, Executive agrees not to
actively engage in any other employment, occupation or consulting activity for
any direct or indirect remuneration without the prior approval of the Board.
3. Employment Term. It is intended that the employment arrangement
contemplated by this Agreement shall continue until the fifth anniversary of the
Effective Date (such five year period being referred to herein as the
"Employment Term"). Notwithstanding the foregoing, the parties agree that
neither this Agreement nor any provision herein is intended to guarantee the
continuation of Executive's employment for the duration of the Employment Term.
In the event that Executive's employment with the Company terminates prior to
the expiration of the Employment Term for any reason, the parties agree that
Executive shall be entitled to receive only those benefits that are expressly
provided by this Agreement in such circumstances.
4. Base Salary. During the Employment Term, the Company will pay
Executive as compensation for his services a base salary at the annualized rate
of $385,000 (the "Base Salary"). The Base Salary will be paid periodically in
accordance with the Company's normal payroll practices and be subject to the
usual, required withholding. Executive's annual base salary will be reviewed
on an annual basis beginning in 2004 by the Compensation Committee of the Board
(the "Compensation Committee") in accordance with such committee's established
procedures for reviewing salaries of the Company's executive officers.
(a) Bonus. While Executive is employed during the Employment
Term, Executive shall be entitled to receive, within 60 days after the end of
each completed fiscal year, an annual target bonus (the "Core Bonus"), based on
the Company's fiscal year of up to 100% of Executive's then-current Base Salary
based upon Executive's performance and the Company's attainment of objectives
mutually agreed upon by Executive and the Compensation Committee (the objectives
for fiscal 2003 are set forth in a separate schedule from this Agreement). In
addition, while Executive is employed during the Employment Term, Executive
shall be entitled to receive an additional annual bonus (the "Stretch Bonus") in
an amount to be determined based on the Company's attainment of objectives
mutually agreed upon by Executive and the Compensation Committee; the Stretch
Bonus shall be based on milestones to be measured over a two-year period, with
any bonus payments becoming payable within 30 days of the end of the two-year
period (the target amount objectives for the Stretch Bonus for fiscal 2003-2004
are set forth in a separate schedule from this Agreement). Except as permitted
under Section 8, Executive must be employed by the Company during the entire
applicable bonus period for the payment of either the Core Bonus or the Stretch
Bonus. With respect to any subjective milestones, the determination of whether
Executive has attained the mutually agreed upon milestones for both the Core
Bonus and the Stretch Bonus, and the amount, if any, of any bonus shall be
reasonably determined by the Compensation Committee.
(b) Equity Awards.
(i) Stock Options. Effective as of the date of approval
of this Agreement by the Board of Directors, Executive will be granted a stock
option, which will be, to the extent possible under the $100,000 rule of Section
422(d) of the Internal Revenue Code of 1986, as amended (the "Code"), an
"incentive stock option" (as defined in Section 422 of the Code), to purchase
100,000 shares of the Company's Common Stock at an exercise price equal to the
fair market value of the underlying shares on the date of grant (the "Option").
As long as Executive provides continued service to the Company on the relevant
vesting dates and subject to the accelerated vesting provisions set forth
herein, the Option will vest as to 1/48th of the shares on a monthly basis
following the Effective Date, so that the Option will be fully vested and
exercisable four years from the Effective Date. The Option will be subject to
the terms, definitions and provisions of the Company's 1997 Stock Plan (the
"Option Plan") and the stock option agreement by and between Executive and the
Company (the "Option Agreement"), both of which documents are incorporated
herein by reference.
(ii) Restricted Stock Grant. Executive will be granted a
restricted stock award of 50,000 shares of the Company's Common Stock (the
"Restricted Shares"). Such shares shall initially be unvested and subject to
repurchase by the Company at a price of $0.001 per share. Executive shall
acquire a vested interest in, and the Company's repurchase right shall
accordingly lapse with respect to all of the Restricted Shares on August 1,
2008, subject to Executive's continued service to the Company on such date. The
restricted stock grant shall be subject to the terms, definitions and provisions
of the Option Plan and the restricted stock award agreement evidencing
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the restricted stock grant (the "Restricted Stock Agreement"), which documents
are incorporated herein by reference.
(iii) Acceleration Upon Certain Termination Following
Change of Control. The exercisability of the Option and the vesting of the
Restricted Shares may be subject to acceleration in accordance with the terms
and conditions set forth in the Management Retention Agreement, dated as of
October __, 2001, between the Company and Executive (the "Management Retention
Agreement").
(c) Deferred Compensation. Independent of the provisions of
Section 8, with respect to the Company's Deferred Compensation Plans, Executive
shall continue to be entitled to receive the rights and benefits permitted
Executive under such plans.
5. Employee Benefits. While Executive is employed during the Employment
Term, Executive will be entitled to participate in the employee benefit plans
currently and hereafter maintained by the Company of general applicability to
other senior executives of the Company, including, without limitation, the
Company's group medical, dental, vision, disability, life insurance,
flexible-spending account plans and Executive Deferred Compensation Plan and
Executive Deferred Stock Plan (together the "Deferred Compensation Plans"). The
Company reserves the right to cancel or change the benefit plans and programs it
offers to its employees at any time; provided, however, that if the Company does
so, then in such event, Executive shall be compensated in an equivalent amount
for any loss represented by such cancellation or change as additional
compensation, unless such cancellation or change applies equally to all senior
executive officers of the Company.
6. Vacation. While Executive is employed during the Employment Term,
Executive shall be entitled to vacation benefits established by the Company
commensurate with Executive's status as the Chief Executive Officer and Chairman
of the Board. Notwithstanding the foregoing, the Executive shall have no less
than four weeks of vacation. The Company's vacation policy may be revised from
time to time.
7. Expenses. While Executive is employed during the Employment Term,
the Company will reimburse Executive for reasonable travel, entertainment or
other expenses incurred by Executive in the furtherance of or in connection with
the performance of Executive's duties hereunder, in accordance with the
Company's expense reimbursement policy as in effect from time to time. In
addition, Executive shall be entitled to (a) reimbursement for his legal fees
incurred in connection with the legal review of this Agreement (up to a maximum
of $5,000.00) and (b) a monthly car allowance of $1,500.00.
8. Severance.
(a) Termination Following a Change of Control. If during the
Employment Term Executive's employment is terminated within 12 months following
a Change of Control, the severance and other benefits to which Executive is
entitled, if any, shall be governed by the Management Retention Agreement (which
includes the definition of Change of Control). Notwithstanding the foregoing,
for purposes of Section 4(b) of Executive's Management Retention Agreement, the
term "Target Bonus" shall be deemed to include both the Core Bonus and the
Stretch
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Bonus. Furthermore, with respect to the Deferred Compensation Plans, if during
the Employment Term, Executive's employment is terminated within 12 months
following a Change of Control (as defined therein), Executive shall be entitled
to all rights and benefits permitted Executive under such plans.
(b) Involuntary Termination Without Cause and Apart From
Change of Control. If during the Employment Term, either prior to the occurrence
of a Change of Control or after the 12 month period following a Change of
Control, Executive's employment with the Company terminates either (A)
involuntarily by the Company for reasons other than Cause, death or Disability
(as such capitalized terms are defined below) or (B) by Executive pursuant to a
Voluntary Termination for Good Reason, and Executive signs and does not revoke a
standard release of claims with the Company, then, subject to Section 10,
Executive shall be entitled to receive the following benefits from the Company:
(i) Salary and Bonus Continuation. Executive shall be
entitled to receive continuing payments of severance pay (less applicable
withholding taxes) at the rate equal to Executive's Base Salary rate, as then in
effect, for a period of 24 months from the date of such termination in
accordance with the Company's normal payroll policies. In addition, Executive
shall be entitled to receive 100% of Executive's Core Bonus (less applicable
withholding taxes) as in effect for the fiscal year in which Executive's
termination occurs; provided, however, payments of the Core Bonus will be paid
over a period of 12 months from the date of such termination in accordance with
the Company's normal payroll practices. Executive shall not be entitled to any
Stretch Bonus as severance under this Section 8(b). Notwithstanding the term of
this Agreement, such continuation of Executive's Base Salary, the payment of the
Core Bonus and the provision of other benefits as provided in this Section 8(b)
shall be in lieu of any and all other benefits which Executive may be entitled
to receive on the date of Executive's termination of employment pursuant to any
Company severance and benefit plans and practices or pursuant to other
agreements with the Company, other than the Deferred Compensation Plans, the
benefits of which will be provided to Executive in accordance with the terms of
such plans.
(ii) Benefits. Executive shall receive at the Company's
expense 100% of Company-paid health, dental and vision insurance benefits at the
same level of coverage as was provided to Executive immediately prior to the
termination of Executive's employment with the Company ("Company-Paid
Coverage"). If such coverage included Executive's dependents immediately prior
to Executive's termination, such dependents shall also be covered at the
Company's expense. Company-Paid Coverage shall continue until the earlier of (i)
18 months following the date of the termination of Executive's employment (the
"Benefits Termination Date"), or (ii) the date upon which Executive or
Executive's dependents become covered under another employer's group health,
dental and vision insurance benefit plans. If, after 18 months following the
Benefits Termination Date, Executive has not become covered under another
employer's group health, dental and vision insurance benefit plans, Executive
may independently obtain health, dental and vision insurance benefits comparable
in the aggregate in scope and coverage to that provided by the Company to
Executive immediately prior to the Benefits Termination Date, and the Company
shall reimburse Executive for the cost of the premiums paid for such benefits
until the earlier of (A) six months following the termination of Company-Paid
Coverage, or (B) the date upon which Executive and Executive's dependents become
covered under another employer's group health, dental and vision insurance
benefit plans.
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(iii) Partial Accelerated Vesting. All equity awards
(including but not limited to the Option and the Restricted Shares) from the
Company then held by Executive shall partially accelerate, or if Executive is
then holding unvested shares, the Company's right to repurchase the
then-unvested shares under each such equity award shall partially lapse, with
respect to the number of shares under each such award that would have become
vested or been released from such repurchase right under each respective equity
award if Executive's employment with the Company had continued for an additional
12 months following such termination date.
(c) Voluntary Termination; Termination for Cause. If during
the Employment Term Executive's employment is terminated by the Company for
Cause, or by Executive for any reason, including death or Disability but other
than pursuant to a Voluntary Termination for Good Reason then (A) all further
vesting of any stock option (including the Option), restricted stock award
(including the Restricted Shares) or other Company equity compensation held by
Executive will cease immediately (however, Executive shall be permitted to
exercise vested options for the time period specified in his option agreements
and he shall retain all vested restricted stock) and all payments of
compensation by the Company to Executive hereunder will terminate immediately
(except as to amounts already earned), and (B) Executive will only be eligible
for severance benefits in accordance with the Company's established policies as
then in effect. Except as provided in subsection (d) below, if Executive's
employment is terminated for any reason subsequent to the Employment Term,
Executive will only be eligible for severance and other benefits in accordance
with the Company's established policies and plans as then in effect.
(d) Employee Benefits Post-Retirement. Executive and the
Company agree to use their good faith efforts to agree upon terms and conditions
for post-retirement health and medical benefits in favor of Executive and his
immediate family, with the expectation that such agreement will be completed not
later than October 1, 2003.
9. Definitions.
(a) Cause. "Cause" shall mean (i) an act of personal
dishonesty taken by Executive in connection with his responsibilities as an
employee and intended to result in substantial personal enrichment of Executive,
(ii) Executive being convicted of, or a plea of nolo contendere to, a felony,
(iii) a willful act by Executive which constitutes gross misconduct and which is
injurious to the Company, or (iv) following delivery to Executive of a written
demand for performance from the Company which describes the basis for the
Company's reasonable belief that Executive has not substantially performed his
duties, continued violations by Executive of Executive's obligations to the
Company which are demonstrably willful and deliberate on Executive's part and
affords Executive a reasonable opportunity to cure within a reasonable period of
time.
(b) Disability. "Disability" shall mean that (i) Executive has
been unable to perform his Company duties as the result of his incapacity due to
physical or mental illness, and such inability, at least 26 consecutive weeks
after its commencement, is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to Executive or
Executive's legal representative (such Agreement as to acceptability not to be
unreasonably withheld), and (ii) Executive is disabled pursuant to the terms of
the Company's long-term disability insurance covering Executive as then in
effect. Termination resulting from Disability may only be effected after at
least 30 days' written notice by the Company of its intention to terminate
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Executive's employment. In the event that Executive resumes the performance of
substantially all of his duties hereunder before the termination of his
employment becomes effective, the notice of intent to terminate shall
automatically be deemed to have been revoked.
(c) Voluntary Termination for Good Reason. "Voluntary
Termination for Good Reason" shall mean Executive voluntarily resigns after the
occurrence of any of the following (i) without Executive's express written
consent, a material reduction of Executive's duties, title, authority or
responsibilities, relative to Executive's duties, title, authority or
responsibilities as in effect immediately prior to such reduction, or the
assignment to Executive of such reduced duties, title, authority or
responsibilities; provided, however, that a that a "Voluntary Termination for
Good Reason" shall not be deemed to have occurred in connection with a reduction
of duties, title, authority or responsibilities resulting solely from (A) a
Change of Control (as defined in the Management Retention Agreement), or (B) any
change in Executive's position as Chairman of the Board as a result of any
legislation, statute, rule or regulation (including rule or regulation of
Nasdaq) that would require, or encourage for purposes of prudent corporate
governance, the separation of the roles of the Chairman and the Chief Executive
Officer, or any stockholder proposal to similar effect approved by a majority of
the stockholders; (ii) without Executive's express written consent, a material
reduction, without good business reasons, of the facilities and perquisites
(including office space and location) available to Executive immediately prior
to such reduction; (iii) a reduction by the Company in the base salary of
Executive as in effect immediately prior to such reduction; (iv) a material
reduction by the Company in the aggregate level of employee benefits, including
bonuses, to which Executive was entitled immediately prior to such reduction
with the result that Executive's aggregate benefits package is materially
reduced (other than a reduction that generally applies to Company employees); or
(v) any act or set of facts or circumstances which would, under Illinois case
law or statute constitute a constructive termination of Executive.
10. Conditional Nature of Severance Payments.
(a) Noncompete. Executive acknowledges that the nature of the
Company's business is such that if Executive were to become employed by, or
substantially involved in, the business of a competitor of the Company during
the 24 months following the termination of Executive's employment (the
"Restricted Period") with the Company for any reason (whether during the
Employment Term or subsequent to the end of such period), it would be very
difficult for Executive not to rely on or use the Company's trade secrets and
confidential information. Thus, to avoid the inevitable disclosure of the
Company's trade secrets and confidential information, Executive agrees and
acknowledges that Executive's right to receive the severance payments set forth
in Section 8 (to the extent Executive is otherwise entitled to such payments)
shall be conditioned upon Executive not directly or indirectly engaging in
(whether as an employee, consultant, agent, proprietor, principal, partner,
stockholder, corporate officer, director or otherwise), nor having any ownership
interested in or participating in the financing, operation, management or
control of, any person, firm, corporation or business that competes in the
markets for the Restricted Business; provided, however, that nothing in this
Section 10(a) shall prevent Executive from owning as a passive investment less
than 1% of the outstanding shares of the capital stock of a publicly-held
company if (A) such shares are actively traded on the New York Stock Exchange or
the Nasdaq National Market and (B) Executive is not otherwise associated with
such company or any of its affiliates. The "Restricted Business" for purposes of
this Agreement is one which is engaged in the
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design, development, manufacture, production, marketing, sale, licensing or
servicing of any products, or the provision of any services, that are the same
as or similar to those of the Company during the Restricted Period. Upon any
breach of this section, all severance payments and benefits pursuant to this
Agreement shall immediately cease.
(b) Non-Solicitation. During the 24 months following the
termination of Executive's employment with the Company for any reason (whether
during or after the Employment Term), Executive agrees and acknowledges that
Executive's right to receive the severance payments set forth in Section 8 (to
the extent Executive is otherwise entitled to such payments) shall be
conditioned upon Executive not either directly or indirectly soliciting,
inducing, attempting to hire, recruiting, encouraging, taking away, hiring any
employee of the Company or causing an employee to leave his or her employment
either for Executive or for any other entity or person.
(c) Understanding of Covenants. Executive represents that he
(i) is familiar with the foregoing covenants not to compete and not to solicit,
and (ii) is fully aware of his obligations hereunder, including, without
limitation, the reasonableness of the length of time, scope and geographic
coverage of these covenants.
11. Additional Representations, Warranties and Acknowledgments by
Executive. Executive represents and warrants to the Company that Executive is
not subject to any conditions, such as a covenant not to compete with a former
employer, that would in any way restrict either the Company's ability and right
to employ Executive or which would result in the Company incurring additional
costs for employing Executive. Further, Executive acknowledges that (i) the
consulting agreements between the Company and Executive dated as of February 15,
2001 and April 29, 2001 terminated in their entirety as of October 31, 2001 and
(ii) Executive's obligations to maintain the confidentiality of all confidential
and proprietary information of the Company under Executive's confidentiality
agreement with the Company dated October 17, 2001 (the "Confidentiality
Agreement") remain in full force and effect.
12. Assignment. This Agreement will be binding upon and inure to the
benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death and (b) any successor of the Company. Any such successor of
the Company will be deemed substituted for the Company under the terms of this
Agreement for all purposes. For this purpose, "successor" means any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company. None of the rights
of Executive to receive any form of compensation payable pursuant to this
Agreement may be assigned or transferred except by will or the laws of descent
and distribution. Any other attempted assignment, transfer, conveyance or other
disposition of Executive's right to compensation or other benefits will be null
and void.
13. Notices. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given (a) on the
date of delivery if delivered personally, (b) one (1) day after being sent by a
well established commercial overnight service, or (c) four (4) days after being
mailed by registered or certified mail, return receipt requested, prepaid and
addressed to the parties or their successors at the following addresses, or at
such other addresses as the parties may later designate in writing:
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If to the Company:
PCTEL, Inc.
8725 West Higgins Road
Suite 400
Chicago, Illinois 60631
Attn: General Counsel
If to Executive:
Martin H. Singer
(at the last residential address known by the Company)
14. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement will continue in full force and effect without said
provision.
15. Arbitration and Equitable Relief.
(a) Arbitration. Except as provided in Section 15(b) below,
Executive agrees that any dispute or controversy arising out of, relating to, or
concerning Executive's employment with the Company or the termination of
Executive's employment with the Company, or any interpretation, construction,
performance or breach of this Agreement, shall be settled by arbitration to be
held in Cook County, Illinois, in accordance with the National Rules for
Resolution of Employment Disputes then in effect of the American Arbitration
Association, except as provided in Section 15(b) below. The arbitrator may grant
injunctions or other relief in such dispute or controversy. The decision of the
arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction. The Company and Executive shall each pay one-half of the
costs and expenses of such arbitration, and each party shall separately pay its
counsel fees and expenses.
This arbitration clause constitutes a waiver of Executive's and the
Company's right to a jury trial and relates to the resolution of all disputes
relating to all aspects of the employer/employee relationship, except as
provided in Section 15(b) below, including, but not limited to, the following
claims:
(i) Any and all claims for wrongful discharge of
employment; breach of contract, both express and implied; breach of the covenant
of good faith and fair dealing, both express and implied; negligent or
intentional infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with contract or
prospective economic advantage; and defamation;
(ii) Any and all claims for violation of any federal,
state or municipal statute, including, but not limited to, Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination
in Employment Act of 1967, the Americans with Disabilities Act of 1990, and the
Fair Labor Standards Act;
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(iii) Any and all claims arising out of any other laws
and regulations relating to employment or employment discrimination.
(b) Equitable Remedies. Executive agrees that it would be
impossible or inadequate to measure and calculate the Company's damages from any
breach of the covenants set forth in Section 10. Accordingly, Executive agrees
that if Executive breaches such covenants, the Company will have available, in
addition to any other right or remedy available, the right to obtain an
injunction from a court of competent jurisdiction restraining such breach or
threatened breach and to specific performance of any such provision of this
Agreement. Executive further agrees that no bond or other security shall be
required in obtaining such equitable relief, and Executive hereby consents to
the issuance of such injunction and to the ordering of specific performance.
(c) Consideration. Executive understands that each party's
promise to resolve claims by arbitration in accordance with the provisions of
this Agreement, rather than through the courts, is consideration for other
party's like promise. Executive further understands that Executive is offered
employment hereunder in consideration of Executive's promise to arbitrate
claims.
(d) Administrative Relief. Executive understands that this
Agreement does not prohibit Executive from pursuing an administrative claim with
a local, state or federal administrative body, such as the Department of Fair
Employment and Housing, the Equal Employment Opportunity Commission or the
Workers' Compensation Board. This Agreement does, however, preclude Executive
from pursuing court action regarding any such claim (other than workers'
compensation claims).
(e) Voluntary Nature of Agreement. Executive acknowledges and
agrees that Executive is executing this Agreement voluntarily and without any
duress or undue influence by the Company or anyone else. Executive further
acknowledges and agrees that Executive has carefully read this Agreement and
that Executive has asked any questions needed for Executive to understand the
terms, consequences and binding effect of this Agreement and fully understands
it, including that Executive is waiving Executive's right to a jury trial.
Finally, Executive agrees that Executive has been provided an opportunity to
seek the advice of an attorney of Executive's choice before signing this
Agreement.
16. Integration. This Agreement, together with the Option Plan, Option
Agreement, the Restricted Stock Agreement, the Deferred Compensation Plans, the
Confidential Information Agreement, the Management Retention Agreement, and the
equity awards that have previously been issued to Executive (specifically, the
options granted to Executive on February 15, 2001 and October 23, 2001 and the
restricted stock award granted to Executive on October 23, 2001) and the
schedules apart from this Agreement that set forth the milestones for the
payment of the Core Bonus and the Stretch Bonus, represents the entire agreement
and understanding between the parties as to the subject matter herein and
supersedes all prior or contemporaneous agreements whether written or oral. No
waiver, alteration, or modification of any of the provisions of this Agreement
will be binding unless in writing and signed by duly authorized representatives
of the parties hereto (except that the Option Plan and the Deferred Compensation
Plans may be revised or modified in accordance with their terms).
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17. Tax Withholding. All payments made pursuant to this Agreement will
be subject to withholding of applicable taxes.
18. Governing Law. This Agreement will be governed by the laws of the
State of Illinois (with the exception of its conflict of laws provisions).
* * * * *
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by their duly authorized officers, as of the day and
year first above written.
COMPANY:
PCTEL, INC.
By: /s/ John Schoen Date: 9-08-03
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Name: John Schoen
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Title: Chief Operating Officer and
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Chief Financial Officer
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EXECUTIVE:
/s/ Martin H. Singer Date: September 2, 2003
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Martin H. Singer
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