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Exhibit 10.1.7
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and effective as
of October 31, 1997 (the "Effective Date"), at Akron, Ohio, by and between
AIRONET WIRELESS COMMUNICATIONS, INC. ("Employer"), a Delaware corporation with
offices at 367 Ghent Road, Fairlawn, Ohio 44333, and ROGER J. MURPHY
("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee as President and Chief
Executive Officer of Employer, and Employee desires to be so employed, upon the
terms and conditions set forth herein; and
WHEREAS, Employer and Employee desire to have this Agreement supersede
any and all prior agreements, oral or written, relating to the employment of
Employee by Employer.
NOW, THEREFORE, in consideration of the foregoing and in consideration
of the mutual promises and agreements contained herein, the parties hereto agree
as follows:
1. EMPLOYMENT PERIOD. Employer agrees to employ Employee and Employee
agrees to serve Employer for the period (the "Employment Period") beginning on
the Effective Date and ending October 31, 1999. This Agreement may be terminated
earlier pursuant to section 4 hereof.
2. NATURE OF DUTIES.
a. Employee's duties and responsibilities shall be to
serve Employer as its President and Chief Executive Officer, or in such
other capacity as Employer's Board of Directors (the "Board") shall
direct, in conformity with management policies, guidelines and
directions issued by Employer, and shall have general charge and
supervision of those functions and such other responsibilities as the
Board shall determine. Employee shall report to the Board.
b. Employee shall work exclusively for Employer on a
full-time basis in such capacity and shall carry on his employment at
such location as shall be required by the Board. During normal business
hours, Employee shall devote all of his time and attention to
Employer's business.
c. Employee shall perform his duties and
responsibilities hereunder diligently, faithfully and loyally in order
to cause the proper, efficient and successful operation of Employer's
business.
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3. COMPENSATION AND BENEFITS.
a. BASE SALARY AND EXPENSES. As compensation for
Employee's services, Employer shall pay to Employee during the
Employment Period a salary (the "Base Salary") at the annual rate of
$200,000 in fiscal year 1998, and at such higher rates of pay
thereafter as is determined by the Board in its discretion. All
payments will be in arrears, in equal installments every second Friday,
or at such other interval as the Board shall direct, but no less
frequently than twice each month. Employer shall reimburse Employee for
all reasonable out-of-pocket expenses incurred by Employee on
Employer's behalf during the Employment Period and which were approved
by the Board.
b. BONUS COMPENSATION. In addition to the Base
Salary, Employee shall be eligible to receive bonus compensation
("Bonus Compensation") during the Employment Period on a basis to be
agreed upon by Employee and the Board. Bonus compensation shall accrue
and be earned, if at all, and shall be paid at the end of the fiscal
year to which it relates.
c. STOCK OPTIONS. During the Employment Period,
subject to Board approval, Employee shall be eligible to receive grants
of option(s) pursuant to Employer's Employee Stock Option Plans. If at
any time during the Employment Period, the Board directs that Employee
serve in a capacity other than as Employer's President and Chief
Executive Officer or is assigned to perform services not consistent
with such position, and Employee resigns within fourteen (14) days
after either event, or if Employee is terminated other than for cause
or becomes deceased, then all options to purchase Employer's stock then
held by Employee shall immediately vest and be exercisable for the
balance of the term of such options.
d. RESTRICTED STOCK. During the Employment Period,
subject to Board approval, Employee shall be eligible to receive awards
of restricted stock pursuant to any restricted stock plans that may be
adopted by Employer. If at any time during the Employment Period, the
Board directs that Employee serve in a capacity other than as
Employer's President and Chief Executive Officer or is assigned to
perform services not consistent with such position, and Employee
resigns within fourteen (14) days of either event, or if Employee is
terminated other than for cause or becomes deceased, then all
restricted stock awarded by Employer to Employee shall immediately
vest.
e. VACATION. During the Employment Period, Employee
shall be entitled to take vacation time in accordance with Employer's
policies. In the event that all or any part of said vacation is not
taken for any reason during any year, there will be no compensation
paid in lieu thereof, and accrued and unused vacation time shall not be
carried over and added to the vacation time for the succeeding year in
accordance with such policy.
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f. HEALTH, DISABILITY, RETIREMENT AND DEATH BENEFITS.
Employer shall provide Employee with the same health, disability,
retirement, death and other fringe benefits as are generally provided
to the executive employees of Employer in accordance with such terms,
conditions and eligibility requirements as may from time to time be
established or modified by Employer.
4. TERMINATION.
a. This Agreement shall terminate automatically upon
Employee's death.
b. Employer may terminate Employee other than for
cause, or if Employee becomes permanently and completely disabled, at
any time upon no fewer than five (5) days prior written notice to
Employee. Permanent and complete disability shall be determined by
Employer according to the same standards as are applied under the
disability benefits referred to in paragraph 3(f). Any termination
based on disability shall be deemed to be a termination other than for
cause for purposes of paragraphs 3(c) and 3(d). If at any time during
the Employment Period, the Board directs that Employee serve in a
position other than as Employer's President and Chief Executive Officer
or assigns Employee to perform services not consistent with such
position, and Employee resigns his employment within fourteen (14) days
after any such event, then such resignation shall be deemed a
termination of Employee by Employer other than for cause for all
purposes hereunder. Employee may resign his position at any time upon
no fewer than fourteen (14) days prior written notice to Employer.
c. Employer shall have the right to terminate
Employee's employment under this Agreement at any time, immediately,
for "cause," which shall mean for behavior of Employee which is adverse
to Employer's interests, which means Employee's dishonesty, grossly
negligent misconduct, willful misconduct, disloyalty, acts of bad
faith, neglect of duty or material breach of this Agreement.
5. EFFECTS OF TERMINATION.
a. In the event of automatic termination by reason of
Employee's death pursuant to paragraph 4(a), or by Employer by reason
of Employee's permanent disability pursuant to paragraph 4(b), all of
Employer's obligations under this Agreement shall end except for
Employer's obligations to pay Employee's Base Salary and Bonus
Compensation, if any, in each case earned and accrued but unpaid to the
date of death or permanent disability. This paragraph 5(a) does not
limit paragraphs 3(c) or 3(d) regarding vesting of options or
restricted stock. Employee or his beneficiary shall have the right to
receive any payments under the death or disability benefits, as the
case may be, provided to Employee pursuant to paragraph 3(f), if any.
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b. In the event Employer exercises its right of
termination other than for cause pursuant to paragraph 4(b), or if this
Agreement expires, all of Employer's obligations under this Agreement
shall end except for Employer's obligations under paragraph 5(c) of
this Agreement and its obligations to pay Employee's Base Salary and
Bonus Compensation, if any, in each case earned and accrued but unpaid
to the date of termination (which, for purposes of this paragraph 5(b),
shall be five (5) days after the date on which notification is provided
by Employer to Employee pursuant to paragraph 4(b) or at the expiration
of this Agreement, whichever the case may be).
c. In the event Employer exercises its right of
termination other than for cause pursuant to paragraph 4(b), or if this
Agreement is not renewed by Employer when it expires, Employer shall be
obligated to pay Employee as severance pay for twelve (12) months
following the date of such termination or expiration, annualized
compensation at a rate equal to the Base Salary at that time. Such
payments shall be made in equal installments in such intervals as the
Base Salary was paid at the time of termination or expiration.
d. In the event Employer exercises its right of
termination pursuant to paragraph 4(c) for "cause," or Employee
otherwise leaves the employ of Employer prior to the expiration of this
Agreement and such resignation is not deemed to be a termination by
Employer other than for cause in accordance with paragraph 4(b) (for
the purposes of this paragraph 5(d) the date of termination shall the
date of termination or the date Employee otherwise leaves the employ of
Employer), all of Employer's obligations under this Agreement shall end
except for Employer's obligations to pay Employee's Base Salary, if
any, earned and accrued but unpaid to the date of termination.
6. COVENANT NOT TO COMPETE.
a. INDUCEMENT. This covenant between Employee and
Employer is being executed and delivered by Employee in consideration
of Employee's employment with Employer and Employer's obligations
hereunder (including, without limitation, the Base Salary, the Bonus
Compensation and other benefits and payments set forth herein).
Employee acknowledges that Employer's business and Employee's
responsibilities are international in scope. Employee further
acknowledges that the covenant not to compete with Employer contained
in this section 6 was and has been a condition of his employment since
Employee was originally employed by Employer.
b. RESTRICTED ACTIVITIES--DURATION. Except as
otherwise consented to or approved by the Board in writing, Employee
agrees that, in addition to being operative during the term of this
Agreement, the provisions of paragraph 6(b)(i) through (iii) hereof,
inclusive, shall be operative for a period of twelve (12) months after
Employee's termination of employment with Employer or the expiration of
this Agreement or the end of all severance payments made to Employee
under section 5 of this Agreement, whichever is greater,
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regardless of the time, manner or reasons for termination or
expiration. During such periods, Employee will not, directly or
indirectly, acting alone or as a member of a partnership or as an
owner, director, officer, employee, manager, representative or
consultant of any corporation or other business entity:
i. engage in any business in competition with or
adverse to the business that is conducted by Employer, or,
without limiting the generality of the foregoing, engage in
any business which manufactures, sells, distributes, services
or supports products which are of type manufactured, sold,
marketed, serviced or supported by Employer, or which are in
the process of development in which Employee has participated
or has knowledge of, at the time of the termination of
Employee's employment with the Employer, in the United States,
Canada or any European, Asian, Pacific or other foreign
country in which Employer then or thereafter transacts
business or is making a bona fide attempt to do so;
ii. induce, request or attempt to influence any
customers or suppliers of Employer to curtail or cancel their
business or prospective business with Employer or in any way
interfere with Employer's business relationships; or
iii. induce, solicit, assist or facilitate the
inducement or solicitation by a third person of any employee,
officer, agent or representative of Employer, to terminate
their respective relationship with Employer or in any way
interfere with the Employer's employee, officer, agent or
representative relationships.
c. TOLLING; RELIEF OF OBLIGATIONS. In the event that
Employee breaches any provision of this section 6, such violation (1)
shall toll the running of the twelve (12) month period set forth in
paragraph 6(b) from the date of commencement of such violation until
such violation ceases, and (ii) shall relieve Employer of any
obligations to Employee under this Agreement.
d. "BLUE PENCILING" OR MODIFICATION. If either the
length of time, geographic area or scope of restricted business
activity set forth in paragraph 6(b) is deemed unreasonably restrictive
or unreasonable in any other respect in any court proceeding, Employee
and Employer agree and consent to such court's modifying or reducing
such restriction(s) to the extent deemed reasonable under the
circumstances then presented.
7. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
a. For purposes of this Agreement, "Confidential
Information" means all information or trade secrets of any type or
description belonging to Employer which are proprietary and
confidential to Employer or its parent or affiliated corporations and
which are not publicly disclosed or are only disclosed with
restrictions. Without limiting the generality of the foregoing,
"Confidential Information" includes strategic plans for
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carrying on business, other business plans, cost data, internal
financial information, customer lists, employee lists, vendor lists,
business partner or alliances lists manufacturing methods or processes,
product research or engineering data, drawings, designs, schematics,
flow charts, computer programs, program decks, routines, subroutines,
translators, compilers, operation systems, object and source codes,
specifications, inventions, calculations, discoveries and any letters,
papers, documents or instruments disclosing or reflecting any of the
foregoing, and all information revealed to, acquired or created by
Employee during Employee's employment by Employer relating to any of
the foregoing.
b. Employee acknowledges that the discharge of
Employee's duties under this Agreement will necessarily involve his
access to Confidential Information. Employee acknowledges that the
unauthorized use by him or disclosure by him of such Confidential
Information to third parties might cause irreparable damage to Employer
and Employer's business. Accordingly, Employee agrees that at all times
after the date hereof he will not copy, publish, disclose, divulge to
or discuss with any third party nor use for his own benefit or that of
others, without the prior express written consent of the Board, except
in the normal conduct of his duties under this Agreement, any
Confidential Information, it being understood and acknowledged by
Employee that all Confidential Information created, compiled or
obtained by Employee or Employer, or furnished to Employee by any
person while Employee is associated with Employer remains its exclusive
property.
c. Promptly upon termination of his employment,
irrespective of the time or manner thereof or reason therefor, Employee
agrees to return and surrender to Employer all Confidential Information
in any manner in his control or possession, as well as all other
Employer property.
8. REMEDIES INADEQUATE.
a. Employee acknowledges that the services to be
rendered by him to Employer as contemplated by this Agreement are
special, unique and of extraordinary character. Employee expressly
agrees and understand that the remedy at law for any breach by him of
section 6 or section 7 of this Agreement will be inadequate and that
the damages flowing from such breach are not readily susceptible to
being measured in monetary terms. Accordingly, upon adequate proof of
Employee's violation of any legally enforceable provision of section 6
or section 7 hereof, Employer shall be entitled to immediate injunctive
relief, including, without limitation, a temporary order restraining
any threatened or further breach. In the event any equitable
proceedings are brought to enforce the provisions of any of section 6,
section 7 or section 8 hereof, Employee agrees that he will not raise
in such proceedings any defense that there is an adequate remedy at
law, and Employee hereby waives any such defense. Nothing in this
Agreement shall be deemed to limit Employer's remedies at law or in
equity for any breach by Employee of any of the provisions of section 6
or section 7 hereof which may be pursued or availed of by
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Employer. Without limiting the generality of the immediately preceding
sentence, any covenant on Employee's part contained in section 6 or
section 7 hereof, which may not be specifically enforceable shall
nevertheless, if breached, give rise to a cause of action for monetary
damages.
b. Employee has carefully considered, and has had
adequate time and opportunity to consult with his own counsel or other
advisors regarding the nature and extent of the restrictions upon him
and the rights and remedies conferred upon Employer under sections 6,
7, and 8 hereof, and hereby acknowledges and agrees that such
restrictions are reasonable in time, territory and scope, are designed
to eliminate competition which otherwise would be unfair to Employer,
do not stifle the inherent skill and experience of Employee, would not
operate as a bar to Employee's sole means of support, are fully
required to protect the legitimate interests of Employer and do not
confer a benefit upon Employer disproportionate to the detriment to
Employee.
c. The covenants and agreements made by Employee in
sections 6, 7, and 8 hereof shall survive full payment by Employer to
Employee of the amounts to which Employee is entitled under this
Agreement, the expiration of the Employment Period and this Agreement.
9. RIGHTS. Employee acknowledges and agrees that any procedure, design
feature, schematic, invention, improvement, development discovery, know how,
concept, idea or the like (whether or not patentable, registrable under
copyright or trademark laws, or otherwise protectable under similar laws) that
Employee may conceive of, suggest, make, invent, develop or implement, during
the course of his service pursuant to this Agreement (whether individually or
jointly with any other person or persons), relating in any way to the business
of Employer or to the general industry of which Employer is a part, as shall all
physical embodiments and manifestations thereof, and all patent rights,
copyrights, trademarks (or applications therefor) and similar protections
therein (all of the foregoing referred to as "Work Product"), shall be the sole,
exclusive and absolute property of Employer. All Work Product shall be deemed to
be works for hire, and to the extent that any Work Product may not constitute a
work for hire, Employee hereby assigns to Employer all right, title and interest
in, to and under such Work Product, including without limitation, the right to
obtain such patents, copyright registrations, trademark registrations or similar
protections as Employer may desire to obtain. Employee will immediately disclose
all Work Product to Employer and agrees, at any time, upon Employer's request
and without additional compensation, to execute any documents and otherwise to
cooperate with Employer respecting the perfection of its right, title and
interest in, to and under such Work Product, and in any litigation or
controversy in connection therewith, all expenses incident thereto to be borne
by Employer.
10. ASSIGNMENT OF EMPLOYEE'S RIGHTS. In no event shall Employer be
obligated to make any payment under this Agreement to any assignee or creditor
of Employee. Prior to the time of payment under this Agreement, neither Employee
nor his legal representative shall have any right
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by way of anticipation or otherwise to assign or otherwise dispose of any
interest under this Agreement.
11. EMPLOYER'S OBLIGATIONS UNFUNDED. Except as to any benefits that may
be required to be funded under any benefit plan of Employer pursuant to law or
pursuant to other agreements and which are not for the sole benefit of Employee,
the obligations of Employer under this Agreement are not funded and Employer
shall not be required to set aside or deposit in escrow any monies in advance of
the due date for payment thereof to Employee.
12. NOTICES. Any notice to be given hereunder by Employer to Employee
shall be deemed to be given if delivered to Employee in person, or if mailed to
Employee, by certified mail, postage prepaid, return receipt requested, at his
address last known on the records of Employer, and any notice to be given by
Employee to Employer shall be deemed to be given if delivered in person or by
mail, postage prepaid, return receipt requested, to the Chairman of Employer at
Employer's offices in Akron, Ohio, unless Employee or Employer shall have duly
notified the other parties in writing of a change of address. If mailed, such
notice shall be deemed to have been given when deposited in the mail as set
forth above.
13. AMENDMENTS. This Agreement shall not be modified or discharged, in
whole or in part, except by an agreement in writing signed by the parties
hereto.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties. The parties are not relying on any other representation,
express or implied, oral or written. This Agreement supersedes any prior
employment agreement, written or oral, between Employee and Employer.
15. CAPTIONS. The captions contained in this Agreement are for
convenience of reference only and do not affect the meaning of any terms or
provisions hereof.
16. BINDING EFFECT. The rights and obligations of Employer hereunder
shall inure to the benefit of, and shall be binding upon, Employer and its
respective successors and assigns, and the rights and obligations of Employee
hereunder shall inure to the benefit of, and shall be binding upon, Employee and
his heirs, personal representatives and estate.
17. SEVERABLE PROVISIONS. The provisions of this Agreement are
severable, and if any one or more provisions may be determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions and any
partially enforceable provision shall be binding and enforceable to the extent
enforceable in any jurisdiction.
18. GOVERNING LAW AND VENUE. This Agreement shall be interpreted,
construed, and enforced in all respects in accordance with the laws of the State
of Ohio. Any and all actions brought arising out of, or based in whole or in
part upon this Agreement or the employment relationship, may be brought in
either a federal or state court sitting in Cuyahoga or Summit
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County, Ohio, and the parties consent to the jurisdiction thereof, and each
agrees not to contest the venue of such courts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
day and year first above written, effective the Effective Date.
Aironet Wireless Communications, Inc.
By: /s/ James H. Furneaux
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James H. Furneaux, Chairman
/s/ Roger J. Murphy
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Roger J. Murphy
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