exv10w28






Exhibit 10.28




	 	 	 	 	 
	

	 	  8 Technology Drive
  Westborough, MA 01581
  phone +1.508.366.8833
  fax +1.508.836.2677
	 	bigbandnet.com






					
	 	 	 	 	 
	July 15, 2009
	 	Revised
	 	 






Mr. Sean Rooney

136 Riverbend Drive

Groton, MA 01450




Dear Sean,




     On behalf of BigBand Networks, Inc. (“BigBand” or “the Company”), I am pleased to offer you
the position of Senior Vice President, Worldwide Sales reporting to David Heard, Chief Operating
Officer. You will be an Executive Staff Member (E-Staff) based in Westborough, MA. Your total
annual cash compensation target will be $400,000.00. The sales mix is 50/50 with a rate of
$8,333.34 per pay period (at an annual base salary of $200,000.00 US dollars). Base salary will be
paid in accordance with the customary payroll practices of the Company as established or modified
from time to time. The Company pays salaries on a current cycle and a semi-monthly basis. The
annual target incentive is $200,000.00 that includes specific MBO goals of $50,000.00 for 2009 only
constructed by the COO. The incentive is subject to your achievement of specified goals as
determined by mutual agreement with your direct manager. This agreement will be confirmed through
a signed Sales Incentive Plan.



     You are eligible for the same benefits as other full-time employees of BigBand Networks, Inc.
This offer is contingent upon satisfactory background check results.



     Subject to the approval by the Board of Directors, you will be recommended to receive an
option to purchase 250,000 shares of Common Stock through the Company’s stock option plan, subject
to stock splits, if any (“Initial Grant”). Should the recommendation meet with the Board’s
approval, the option price for the Initial Grant will also be set by the Board during the same
meeting. The Initial Grant will be subject to and governed by the terms and conditions of the
Company’s stock option plan that includes a vesting schedule; and, by the stock option agreement
executed between you and the Company. Upon approval of this recommendation by the Board of
Directors, you will receive a copy of the stock option agreement and plan for your review.



     We expect that your position at BigBand Networks will occupy your full business time. We
understand that you have no agreements that would restrict or prevent the performance of your
duties for BigBand Networks. You will be required to sign, as a condition of your employment, the
Nondisclosure and Developments Agreement attached hereto. You also are required by federal law to
verify work authorization status to the Company pursuant to the Immigration and Reform and Control
Act of 1986. This verification must occur by your third day of employment.



 









 





     This is not a contract of employment for a definite term of employment with the Company. As
such, you or the Company for any or no reason, with or without prior notice or cause, can terminate
your employment at any time. BigBand Networks has found that an “at-will” relationship is in the
best interests of both the Company and its employees. The at-will nature of your employment
relationship with the Company cannot be modified except through the execution of a written document
signed by the President and CEO of the Company.



     If, at any time after the six-month anniversary of your start date, you are Terminated or
Constructively Terminated (other than a termination for Misconduct) within six months following a
Change in Control, you will be eligible to receive a severance benefit in an amount equal to twelve
(12) months of your annual base salary and twelve (12) months of health benefits under COBRA. For
all other terminations after the six-month anniversary of your start date (other than terminations
for Misconduct), you will be eligible to receive a severance benefit in an amount equal to six (6)
months of your annual base salary and six (6) months of health benefits under COBRA.



     In addition, in the event that (A) BigBand should experience a Change in Control and (B)
following such Change in Control, you are terminated for a reason other than for Misconduct or you
are Constructively Terminated within six (6) months of such Change of Control, you will receive
accelerated vesting equal to the greater of (i) (12) months or (ii) fifty percent (50%) of the
remaining unvested shares subject to the Initial Grant.



     For purposes of this agreement, “Misconduct” shall mean (i) the commission of any act of
fraud, embezzlement or dishonesty by you, any unauthorized use or disclosure by you of confidential
information or trade secrets of BigBand’s (or any parent subsidiary), any serious violation of
BigBand policy or any other intentional misconduct by you adversely affecting the business or
affairs of BigBand (or any parent or subsidiary) in a material manner. (ii) your continuing failure
or refusal to render services to BigBand in accordance with the duties or requirements of your
position with BigBand that remains uncured ten (10) days after written notice to you setting forth
in reasonable detail the event on which such notice is based; (iii) your commission of any act or
omission constituting gross negligence, gross and willful misconduct, dishonesty or breach of
fiduciary duty to BigBand; or (iv) your breach of a material term of your Employment Agreement or
Proprietary Information and Inventions Assignment Agreement with BigBand.



     For purposes of this Agreement, “Change in Control” is defined as (i) any merger or
consolidation after which the voting securities of BigBand outstanding immediately prior thereto
represent (either by remaining outstanding or by being converted into voting securities of the
surviving or acquiring entity) less than 50% of the combined voting power of the voting securities
of BigBand or such surviving or acquiring entity outstanding immediately after such event; (ii) any
sale of all or substantially all of the assets, technology or capital stock of BigBand (other than
in a spin-off or similar transaction); or (iii) any change in the share ownership of BigBand,
whether by issuance or transfer of shares, as a result of which a person or group of persons that
did not previously control BigBand acquires control of BigBand.



 









 





     For purposes of this Agreement, “Constructive Termination” is defined as any one or more of
the following without your express written consent: (i) the relocation of the principal place of
your employment to a location that is more than (50) miles from Westborough, MA; (ii) any failure
by BigBand to pay , or any material reduction by BigBand of, your base salary of benefits (unless
reductions comparable in amount and duration are concurrently made for all other employees of
BigBand with responsibilities, organizational level and title comparable to yours); or (iii) the
determination by BigBand that your services are no longer needed. Should a Constructive
Termination occur, you must notify BigBand in writing of such Constructive Termination promptly.
Your failure to (i) provide written notice to BigBand within sixty (60) days of the date of such
Constructive Termination of the acts or omissions constituting grounds for a Constructive
Termination or (ii) a reasonable period of not less than thirty (30) days following the date of
such notice for BigBand to cure such act or omission shall constitute a waiver of such Constructive
Termination.



Application of 409A




     Notwithstanding anything to the contrary in this Agreement, if you are a “specified employee”
within the meaning of Section 409A of the Internal Revenue Code of 1986 (“Section 409A”) at the
time of your termination (other than due to death), then the severance payable to you, if any,
pursuant to this Agreement, when considered together with any other severance payments or
separation benefits that are considered deferred compensation under Section 409A (together, the
“Deferred Compensation Separation Benefits”) that are payable within the first six (6)
months following your termination of employment shall become payable on the first payroll date that
occurs on or after the date six (6) months and one (1) day following the date of your separation
from service. All subsequent Deferred Compensation Separation Benefits, if any, shall be payable
in accordance with the payment schedule applicable to each payment or benefit.



     Notwithstanding anything herein to the contrary, if you die following your termination but
prior to the six (6) month anniversary of the separation, then any payments delayed in accordance
with this paragraph shall be payable in a lump sum as soon as administratively practicable after
the date of Executive’s death and all other Deferred Compensation Separation Benefits shall be
payable in accordance with the payment schedule applicable to each payment or benefit. Each
payment and benefit payable under this Agreement is intended to constitute separate payments for
purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. For purposes of this paragraph,
any amount paid under this Agreement that satisfies the requirements of the “short-term deferral”
rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations shall not constitute Deferred
Compensation Separation Benefits, and any amount paid under this agreement that qualifies as a
payment made as a result of an involuntary separation from service pursuant to Section
1.409A-1(b)(9)(iii) of the Treasury Regulations that do not exceed the Section 409A Limit shall not
constitute Deferred Compensation Separation Benefits. For these purposes, “Section 409A Limit”
shall mean the lesser of two (2) times: (i) your annualized compensation based upon the annual rate
of pay paid to you during your taxable year preceding the taxable year of your termination of
employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal
Revenue Service guidance issued with respect thereto; or (ii) the maximum amount that may be taken
into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in
which Executive’s employment is terminated. The provisions in this section are intended to comply
with the requirements of Section 409A so that



 









 







none of the severance payments and benefits to be provided hereunder shall be subject to the
additional tax imposed under Section 409A, and any ambiguities herein shall be interpreted to so
comply. You and BigBand agree to work together in good faith to consider amendments to this
Agreement and to take such reasonable actions which are necessary, appropriate or desirable to
avoid imposition of any additional tax or income recognition prior to actual payment to you under
Section 409A.



     To ensure the timely and economical resolution of disputes that arise in connection with your
employment with BigBand, you and BigBand agree that any and all disputes, claims (including, but
not limited to, any claims for compensation, benefits, stock or stock options, fraud or age, sex,
race, disability or other discrimination or harassment), or causes of action arising from or
relating to the enforcement, breach, performance or interpretation of this Agreement, your
employment, or the termination of your employment, shall be resolved to the fullest extent
permitted by law by final, binding and confidential arbitration, by a single arbitrator, in Suffolk
County, Massachusetts, conducted in accordance with the rules of the American Arbitration
Association. By agreeing to this arbitration procedure, both you and BigBand waive the rights to
resolve any such dispute through a trial jury or judge or administrative proceeding. The
arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the
dispute and to award such as would otherwise be permitted by law; and (b) issue a written
arbitration decision, to include the arbitrator’s essential findings and conclusions and a
statement of the award. The arbitrator shall be authorized to award any and or all remedies that
you or BigBand would be entitled to seek in a court of law. BigBand shall pay all reasonable
arbitration fees in excess of the amount of court fees that would be required if the dispute were
decided in a court of law. Nothing in this agreement is intended to prevent either you or BigBand
from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any
such arbitration. Notwithstanding the foregoing, you and BigBand each have the right to resolve
any issues arising under your Employee Proprietary Information and Inventions Assignment Agreement
by court action instead of arbitration.



     This agreement and the other agreements referred to above constitute the entire agreement
between you and BigBand regarding the terms and conditions of your employment, and they supersede
all prior negotiations, representations or agreements, whether oral or written, between you and
BigBand. This agreement may only be modified by a document signed by you and the Chief Executive
Officer at BigBand.



     Your start date will be July 20, 2009. I am emailing a copy of this letter for your
convenience and will also send two originals of this offer letter to your home. Please sign one of
the letters as your acceptance of this offer and fax to Steven Stowe at (508) 986-7073 (Human
Resources Confidential Fax Line), or scan into a pdf file and email to steven.stowe@bigbandnet.com.



     You may then bring the signed original to Human Resources on your first day of work and keep
the duplicate letter for your files. This employment offer will remain open for your consideration
through Wednesday, July 15, 2009 at 5:00 p.m., at which time it will expire.



 









 





     Sean, I am pleased to have you join BigBand Networks and feel confident that you can make
significant contributions going forward. On behalf of BigBand Networks, Inc., I am waiting to
welcome you aboard.



	 	 	 	 	 
	 	 	 	Sincerely yours,

 	 
	 	/s/ David Heard
 	 
	 	David Heard 	 
	 	Chief Operating Officer 	 
	 



cc: H.R. Department





     I accept this offer of at-will employment with BigBand Networks, Inc. and I agree that this
letter and the Nondisclosure and Developments Agreement sets forth the complete and sole
understanding regarding the terms of my employment and supersedes any and all other agreements,
negotiations, discussions, proposals, or understandings, whether oral or written, previously
entered into, discussed or considered by the parties.



     I understand and agree that I have no contract of employment of definite term of employment
with the Company, and that I or the Company for any reason, with or without prior notice or cause,
can terminate my employment at any time. I further understand that this offer letter is not
intended to be and does not constitute a contract or part of a contractual agreement for continued
employment, either express or implied, between the Company and me, and that the at-will nature of
my employment relationship with the Company cannot be modified except through the execution of a
written document signed by the President and CEO of the Company.



	 	 	 	 	 
	/s/ Sean Rooney

	 	7/16/09	 	 
	 	 	 
	Sean Rooney

	 	Date