Exhibit 10.2
R E S T A T E D E M P L O Y M E N T A G R E E M E N T
This Restated Employment Agreement ("Agreement"), dated as of August 3,
1998 is between Digital Microwave Corporation, a California corporation
("Employer"), and Charles D. Kissner ("Employee").
RECITALS
* Employee has been employed by Employer and is currently serving as the
Chairman and Chief Executive Officer, pursuant to an Employment Agreement
executed by the parties and dated May 1, 1996.
* Employer desires to continue to employ Employee and to assure itself of the
continued services of Employee for the Period of Employment provided for in this
Agreement, and Employee desires to be employed by Employer for such period, upon
the following terms and conditions.
ACCORDINGLY, the parties agree as follows:
1. Period of Employment.
(a) Basic Term. Employer shall employ Employee to render services to Employer
in the position and with the duties and responsibilities described in Section 2
for the period (the "Period of Employment") commencing on the date of this
Agreement and ending on the date upon which the Period of Employment is
terminated in accordance with Section 4.
2. Position and Responsibilities.
(a) Position. Employee shall continue employment with Employer and shall
perform all services appropriate to that position, as well as such other
services as may be assigned by Employer. Employee shall devote his best efforts
and full-time attention to the performance of his duties. Employee shall be
subject to the direction of Employer, which shall retain full control of the
means and methods by which he performs the above services and of the place(s) at
which all services are rendered. Employee shall report to the Board of
Directors of Employer ("Board"). Employee shall be expected to travel if
necessary or advisable in order to meet the obligations of his position.
(b) Other Activity. Except upon the prior written consent of Employer,
Employee (during the Period of Employment) shall not (i) accept any other
employment; or (ii) engage, directly or indirectly, in any other business,
commercial, or professional activity (whether or not pursued for
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pecuniary advantage) that is or may be competitive with Employer, that might
create a conflict of interest with Employer, or that otherwise might
interfere with the business of Employer, or any Affiliate. An "Affiliate"
shall mean any person or entity that directly or indirectly controls, is
controlled by, or is under common control with Employer. Notwithstanding the
foregoing, upon reasonable notice to Employer, Employee may serve as a
director of a reasonable number of entities so long as such entities are not
competitive with Employer or any Affiliate and where such service does not
otherwise create a conflict of interest.
3. Compensation and Benefits.
(a) Compensation. In consideration of the services to be rendered under this
Agreement, Employer shall pay Employee a base salary of $430,000 per year,
payable semi-monthly, pursuant to the procedures regularly established, and as
they may be amended, by Employer in its sole discretion, during the Period of
Employment. Employer shall review annually Employee's compensation and shall
determine, in its sole discretion, whether and how much the existing
compensation shall be adjusted, without regard to any policy or practice
Employer may have for adjusting salaries. In addition to base salary, Employee
shall be eligible to participate in the Employer's executive management
incentive bonus and stock option plans according to the terms of those plans.
(b) Benefits. Employee shall be entitled to vacation leave in accordance with
Employer's standard policies. As Employee becomes eligible therefor, Employee
shall have the right to participate in and to receive benefits from all present
and future benefit plans specified in Employer's policies and generally made
available to similarly situated employees of Employer. The amount and extent of
benefits to which Employee is entitled shall be governed by the specific benefit
plan, as amended. Employee also shall be entitled to any benefits or
compensation tied to termination as described in Section 4. Nothing stated in
this Agreement shall prevent Employer from changing or eliminating any benefit
during the Period of Employment as Employer, in its sole discretion, may deem
necessary or desirable. No statement concerning benefits or compensation to
which Employee is entitled shall alter in any way the term of this Agreement,
any renewal thereof, or its termination. All compensation and comparable
payments to be paid to Employee under this Agreement shall be less withholdings
required by law.
(c) Expenses. Employer shall reimburse Employee for reasonable travel and
other business expenses incurred by Employee in the performance of his duties,
in accordance with Employer's policies, as they may be amended in Employer's
sole discretion. It is expected that Employee may expend funds on occasion for
which no reimbursement will be received. Examples include certain entertainment
for Executive Officers and use of private or commercial air transportation which
significantly exceeds costs consistent with Company Policies.
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4. Termination of Employment.
(a) By Death. The Period of Employment shall terminate automatically upon
the death of Employee. Upon termination by death, stock options issued
concurrently with the execution of this Agreement and during the Period of
Employment ("Stock Options") that are then outstanding but not yet
exercisable shall automatically vest and become exercisable as to an
additional sixty percent (60%) of the total number of shares subject to each
such Stock Option. Employee's beneficiaries or estate shall also receive any
compensation then due and owing to Employee, including payment for accrued
but unused vacation and the severance benefits provided in subparagraphs
4(c)(i)-(iii), excluding the benefits described in subparagraph 4(e)(iv)-(v).
Upon termination by death, should Employee's dependents who already receive
health insurance benefits under Employer's group plan ("Dependents") elect to
convert their health insurance benefits under COBRA, Employer will pay for
Dependents' share of health insurance premiums for a period of up to
thirty-six (36) months, or until Dependents are eligible to participate in
another group plan, whichever comes first. Thereafter, all obligations of
Employer under this Agreement shall cease. Nothing in this Section shall
affect any entitlement of Employee's heirs to the benefits of any life
insurance plan or other applicable benefits.
(b) By Disability. If, by reason of any physical or mental incapacity,
Employee has been or will be prevented from properly performing his duties
under this Agreement for more than ninety (90) consecutive days, then, to the
extent permitted by law, Employer may terminate the Period of Employment
without any advance notice. Upon termination by disability, Employer shall
pay Employee all compensation to which he is entitled up through the day
notice of termination is provided, and, Employee shall be entitled to receive
the severance benefits provided in subparagraphs 4(a)(i)-(v). Thereafter,
all obligations of Employer under this Agreement shall cease. Nothing in this
Section shall affect Employee's rights under any applicable Employer
disability plan; provided, however, that the severance benefits to which
Employee is entitled shall be offset by any disability income payments
received by Employee so that the total monthly severance and disability
income benefit payments for the severance period shall not exceed Employee's
then current base salary.
(c) By Employer Not For Cause. At any time, Employer may terminate the
Period of Employment Not for Cause for any reason, by providing Employee ten
(10) days' advance written notice, provided that Employee shall, in addition
to all compensation due and owing through the last day actually worked,
receive the following:
(i) A severance payment equal to three times the average of
Employee's annual base salary for the preceding three (3) years. At the
discretion of the Employer, the severance payment may be made in the form of
salary continuation over the equivalent pay periods that the severance covers
or in a lump sum payment.
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(ii) A payment equal to three (3) times the average of the annual
incentive bonus payments received by Employee, if any, for the previous three
(3) fiscal years.
(iii) A payment when due of the incentive bonus to which the Employee
would have been entitled prorated based on the number of months the Employee was
employed during the incentive bonus period.
(iv) Payment of the Employee's share of health insurance premiums
for a period of up to thirty-six (36) months, or until Employee is eligible
to participate in another Employer's plan, whichever comes first, should
Employee elect to convert his health insurance benefits under COBRA.
(v) Stock Options shall continue to vest and become exercisable for
thirty-six (36) months, except as otherwise provided for in the Stock Options.
(d) By Employer For Cause. At any time, and without prior notice, Employer may
terminate the Period of Employment for Cause (as defined below). Employer shall
pay Employee all compensation then due and owing; thereafter, all of Employer's
obligations under this Agreement shall cease. Termination shall be for "Cause"
if Employee: (i) acts in bad faith and to the detriment of Employer;
(ii) exhibits in regard to his employment willful misconduct, dishonesty,
habitual neglect of duties, or any willful act or omission that may materially
and adversely affect the Employer's business or that involves fraud,
embezzlement or misappropriation of any property or proprietary information of
the Employer; (iii) is convicted of a crime involving dishonesty, breach of
trust, or physical or emotional harm to any person; or (iv) breaches any
material term of this Agreement. If termination is due to Employee's
disability, Section 4(b) above shall control, and not this subsection on
termination for Cause.
(e) By Employee Not for Cause. At any time, Employee may terminate the Period
of Employment for any reason, with or without cause, by providing Employer ten
(10) days' advance written notice. Employer shall have the option, in its
complete discretion, to make termination of the Period of Employment effective
at any time prior to the end of such notice period, provided Employer pays
Employee all compensation due and owing through the last day actually worked,
plus an amount equal to the base salary Employee would have earned through the
balance of the above notice period, not to exceed ten (10) days; thereafter, all
of Employer's obligations under this Agreement shall cease.
(f) By Employee for Good Reason. Employee may terminate, without liability,
the Period of Employment for Good Reason (as defined below), provided
Employee gives Employer sixty (60) days' advance written notice of the reason
for termination and his intent to terminate this Agreement. During this
period, Employer shall have an opportunity to correct the condition
constituting Good Reason. If the condition is remedied within this period,
Employee's notice to terminate shall be rescinded automatically; if not
remedied, termination of the Period of Employment shall become effective upon
expiration of the above notice period. In this event,
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Employer shall pay Employee all compensation due and owing through the last
day actually worked including any accrued but unused vacation. Employer
shall also have the option, in its complete discretion, to make termination
effective at any time prior to the end of the notice period, provided that
Employer pays Employee all compensation due and owing through the balance of
the notice period (not to exceed sixty (60) days). Employee shall be
entitled to exercise his right to terminate this Agreement for Good Reason
only if he gives the required notice not more than forty-five (45) days after
the occurrence of the event that is the basis for the Good Reason. If
Employee terminates the Period of Employment for Good Reason pursuant to the
provisions of this Section 4(f), Employee shall receive the severance
benefits described in subparagraphs 4(a)(i)-(v) above.
Termination shall be for "Good Reason" if Employee voluntarily resigns
following: (i) a change in Employee's position with employer which materially
reduces Employee's level of responsibility; (ii) a reduction in Employee's
level of compensation (including base salary, fringe benefits, and any
non-discretionary and objective-standard incentive payment or bonus award) by
more than five percent (5%); or (iii) a relocation of Employee's principal
place of employment by more than fifty (50) miles, provided and only if such
change, reduction or relocation is effected by the Employer without
Employee's consent.
(g) Termination Obligations.
(i) Employee agrees that all property, including, without limitation, all
equipment, tangible Proprietary Information (as defined below), documents,
books, records, reports, notes, contracts, lists, computer disks (and other
computer-generated files and data), and copies thereof, created on any medium
and furnished to, obtained by, or prepared by Employee in the course of or
incident to his employment, belongs to Employer and shall be returned promptly
to Employer upon termination of the Period of Employment.
(ii) All benefits to which Employee is otherwise entitled shall cease upon
Employee's termination of the Period of Employment, unless explicitly continued
either under this Agreement or under any specific written policy or benefit plan
of Employer.
(iii) Upon termination of the Period of Employment, Employee shall be deemed
to have resigned from all offices and directorships then held with Employer or
any Affiliate, unless otherwise approved by the Company's Board of Directors.
(iv) The representations and warranties contained in this Agreement and
Employee's obligations under this Section 4(g) on Termination Obligations and
Section 5 on Proprietary Information shall survive the termination of the Period
of Employment and the expiration of this Agreement.
(v) Following any termination of the Period of Employment, Employee shall
fully cooperate with Employer in all matters relating to the winding up of
pending work on behalf of Employer and the orderly transfer of work to other
employees of Employer. Employee shall also cooperate
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in the defense of any action brought by any third party against Employer that
relates in any way to Employee's acts or omissions while employed by Employer.
5. Proprietary Information.
(a) Defined. "Proprietary Information" is all information and any idea in
whatever form, tangible or intangible, pertaining in any manner to the business
of Employer, or any Affiliate, or its employees, clients, consultants, or
business associates, which was produced by any employee of Employer, or any
Affiliate, in the course of his or her employment or otherwise produced or
acquired by or on behalf of Employer, or any Affiliate. All Proprietary
Information not generally known outside of Employer's organization, and all
Proprietary Information so known only through improper means, shall be deemed
"Confidential Information." Without limiting the foregoing definition,
Proprietary and Confidential Information shall include, but not be limited to:
(i) formulas, teaching and development techniques, processes, trade secrets,
computer programs, electronic codes, inventions, improvements, and research
projects; (ii) information about costs, profits, markets, sales, and lists of
customers or clients; (iii) business, marketing, and strategic plans; and (iv)
employee personnel files and compensation information. Employee should consult
any Employer procedures instituted to identify and protect certain types of
Confidential Information, which are considered by Employer to be safeguards in
addition to the protection provided by this Agreement. Nothing contained in
those procedures or in this Agreement is intended to limit the effect of the
other.
(b) General Restrictions on Use. During the Period of Employment, Employee
shall use Proprietary Information, and shall disclose Confidential Information,
only for the benefit of Employer and as is necessary to carry out his
responsibilities under this Agreement. Following termination, Employee shall
neither, directly or indirectly, use any Proprietary Information nor disclose
any Confidential Information, except as expressly and specifically authorized in
writing by Employer. The publication of any Proprietary Information through
literature or speeches must be approved in advance in writing by Employer.
6. Arbitration.
(a) Arbitrable Claims. All disputes between Employee (and his attorneys,
successors, and assigns) and Employer (and its Affiliates, shareholders,
directors, officers, employees, agents, successors, attorneys, and assigns)
relating in any manner whatsoever to the employment or termination of Employee,
including, without limitation, all disputes arising under this Agreement,
("Arbitrable Claims") shall be resolved by arbitration. All persons and
entities specified in the preceding sentence (other than Employer and Employee)
shall be considered third-party beneficiaries of the rights and obligations
created by this Section on Arbitration. Arbitrable Claims shall include, but
are not limited to, contract (express or implied) and tort claims of all kinds,
as well as all claims based on any federal, state, or local law, statute, or
regulation,
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excepting only claims under applicable workers' compensation law and
unemployment insurance claims. By way of example and not in limitation of
the foregoing, Arbitrable Claims shall include any claims arising under Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the Americans with Disabilities Act, and the California Fair Employment
and Housing Act, as well as any claims asserting wrongful termination, breach
of contract, breach of the covenant of good faith and fair dealing, negligent
or intentional infliction of emotional distress, negligent or intentional
misrepresentation, negligent or intentional interference with contract or
prospective economic advantage, defamation, invasion of privacy, and claims
related to disability. Arbitration shall be final and binding upon the
parties and shall be the exclusive remedy for all Arbitrable Claims, except
that Employer may, at its option, seek injunctive relief and damages in court
for any breach of Section 5 of this Agreement. Subject to the foregoing
sentence, THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY
IN REGARD TO ARBITRABLE CLAIMS.
(b) Procedure. Arbitration of Arbitrable Claims shall be in accordance with
the Employment Dispute Resolution Rules of the American Arbitration Association
("AAA Employment Rules"), except as provided otherwise in this Agreement.
Arbitration shall be initiated by providing written notice to the other party
with a statement of the claim(s) asserted, the facts upon which the claim(s) are
based, and the remedy sought. The burden of proof in any arbitration shall be
allocated as provided by applicable law, unless otherwise specified in this
Agreement. Either party may bring an action in court to compel arbitration
under this Agreement and to enforce an arbitration award. Otherwise, neither
party shall initiate or prosecute any lawsuit or administrative action in any
way related to any Arbitrable Claim. The Federal Arbitration Act shall govern
the interpretation and enforcement of this Section 6.
(c) Arbitrator Selection and Authority. All disputes involving Arbitrable
Claims shall be decided by a single arbitrator. The arbitrator shall be
selected by mutual agreement of the parties within thirty (30) days of the
effective date of the notice initiating the arbitration. If the parties cannot
agree on an arbitrator, then the complaining party shall notify the AAA and
request selection of an arbitrator in accordance with the AAA Employment Rules.
The arbitrator shall have only such authority to award equitable relief,
damages, costs, and fees as a court would have for the particular claim(s)
asserted. The fees of the arbitrator shall be split between both parties
equally. The arbitrator shall have exclusive authority to resolve all
Arbitrable Claims, including, but not limited to, any claim that all or any part
of this Agreement is void or unenforceable.
(d) Confidentiality. All proceedings and all documents prepared in connection
with any Arbitrable Claim shall be confidential and, unless otherwise required
by law, the subject matter thereof shall not be disclosed to any person other
than the parties to the proceedings, their counsel, witnesses and experts, the
arbitrator, and, if involved, the court and court staff. All documents filed
with the arbitrator or with a court shall be filed under seal. The parties
shall stipulate to all arbitration and court orders necessary to effectuate
fully the provisions of this subsection concerning confidentiality.
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(e) Continuing Obligations. The rights and obligations of Employee and
Employer set forth in this Section on Arbitration shall survive the termination
of Employee's employment and the expiration of this Agreement.
7. Notices.
Any notice under this Agreement must be in writing and shall be effective upon
delivery by hand, upon facsimile transmission to the number provided below (if
one is provided), or three (3) business days after deposit in the United States
mail, postage prepaid, certified or registered, and addressed to Employer or to
Employee at the corresponding address below. Employee shall be obligated to
notify Employer in writing of any change in his address. Notice of change of
address shall be effective only when done in accordance with this Section.
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Employer's Notice Address:
Vice President, Personnel
Digital Microwave Corporation
170 Rose Orchard Way
San Jose, California 95134
Fax Phone No.: (408)944-1701
Employee's Notice Address:
Charles D. Kissner
Digital Microwave Corporation
170 Rose Orchard Way
San Jose, California 95134
Fax Phone No.: (408)944-1701
8. Action by Employer.
All actions required or permitted to be taken under this Agreement by Employer,
including, without limitation, exercise of discretion, consents, waivers, and
amendments to this Agreement, shall be made and authorized only by the Chairman
or by his or her representative specifically authorized to fulfill these
obligations under this Agreement.
9. Integration.
This Agreement is intended to be the final, complete, and exclusive statement
of the terms of Employee's employment by Employer. Except for any
Proprietary Information Agreements, previous stock option agreements, and any
agreements evidencing an issuance of Stock Options, this Agreement supersedes
all other prior and contemporaneous agreements and statements pertaining in
any manner to the employment of Employee, including but not limited to
Employee's previous Employment Agreement with Employer, dated May 1, 1996,
and it may not be contradicted by evidence of any prior or contemporaneous
statements or agreements. To the extent that the practices, policies, or
procedures of Employer, now or in the future, apply to Employee and are
inconsistent with the terms of this Agreement, the provisions of this
Agreement shall control.
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10. Amendments; Waivers.
This Agreement may not be modified, amended, or terminated except by an
instrument in writing, signed by each of the parties. No failure to exercise
and no delay in exercising any right, remedy, or power under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
11. Assignment; Successors and Assigns.
Employee agrees that he will not assign, sell, transfer, delegate, or otherwise
dispose of, whether voluntarily or involuntarily, or by operation of law, any
rights or obligations under this Agreement. Any such purported assignment,
transfer, or delegation shall be null and void. Nothing in this Agreement shall
prevent the consolidation of Employer with, or its merger into, any other
entity, or the sale by Employer of all or substantially all of its assets, or
the otherwise lawful assignment by Employer of any rights or obligations under
this Agreement. Subject to the foregoing, this Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective heirs, legal
representatives, successors, and permitted assigns, and shall not benefit any
person or entity other than those specifically enumerated in this Agreement.
12. Severability.
If any provision of this Agreement, or its application to any person, place, or
circumstance, is held by an arbitrator or a court of competent jurisdiction to
be invalid, unenforceable, or void, such provision shall be enforced to the
greatest extent permitted by law, and the remainder of this Agreement and such
provision as applied to other persons, places, and circumstances shall remain in
full force and effect.
13. Attorneys' Fees.
In any legal action, arbitration, or other proceeding brought to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs.
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14. Governing Law.
This Agreement shall be governed by and construed in accordance with the law of
the State of California.
15. Interpretation.
This Agreement shall be construed as a whole, according to its fair meaning,
and not in favor of or against any party. By way of example and not in
limitation, this Agreement shall not be construed in favor of the party
receiving a benefit nor against the party responsible for any particular
language in this Agreement. Captions are used for reference purposes only and
should be ignored in the interpretation of the Agreement.
16. Employee Acknowledgment.
Employee acknowledges that he has had the opportunity to consult legal counsel
in regard to this Agreement, that he has read and understands this Agreement,
that he is fully aware of its legal effect, and that he has entered into it
freely and voluntarily and based on his own judgment and not on any
representations or promises other than those contained in this Agreement.
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The parties have duly executed this Agreement as of the date first written
above.
/s/ CHARLES D. KISSNER
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Charles D. Kissner
Digital Microwave Corporation
/s/ BILLY B. OLIVER
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By: Billy B. Oliver
Its: Chairman of the Compensation Committee
of the Board of Directors
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