ex10-8.htm


    


    EXHIBIT
10.8

    


    Separation
Agreement

    


    This
Separation Agreement (“Agreement”) is entered into by and between Randall P.
Marx ("Marx”) and ARC Wireless Solutions, Inc., a Utah corporation ("ARC
Wireless"), who are collectively referred to hereinafter as “the
Parties.”

    


    Whereas, the Parties entered into an
Employment Agreement, dated January 31, 2008;

    


    Whereas,
that Employment Agreement provides for Marx’s continued employment through
December 31, 2009, with the possibility of three additional one-year extensions
thereafter and severance pay of twenty additional months upon immediate
termination;

    


    Whereas,
ARC Wireless wishes to allow Marx’s employment to end prior to then, and
although Marx is intent upon finishing out his employment and recovering
severance pursuant to his Employment Agreement, he is also willing, in
furtherance of ARC Wireless’ business interests, to enter into this Agreement
instead;

    


    Now,
therefore, the Parties, for and in consideration of the mutual releases,
and agreements contained below, agree to this Agreement.

    


    1.         In
lieu of continuing to work for the entire term of his employment and any
extensions thereafter, as provided in his Employment Agreement, para. 2, ARC
Wireless and Marx agree that his employment will end and that he will resign as
Chief Executive Officer and a director of ARC Wireless effective November 18,
2008 (the “Resignation Date”).  Marx represents that on or before the
Resignation Date, he returned all property of ARC Wireless and all copies,
excerpts or summaries thereof in his possession, custody or control. Marx
further represents that during his employment, he did not commit any fraudulent
acts.

    


    2.         In
lieu of receiving wages for the entire term of his employment and any extensions
thereafter, plus the additional severance thereafter provided for in his
Employment Agreement, para. 2.4, 4.1, and 7.3.1, Marx will instead be paid a
total of $327,500 of wages over the next 6 months in equal
installments.  Marx will not receive a salary increase in 2009; nor
will he receive any bonus payment for 2008 or 2009.  He also will not
receive any payments for accrued vacation.  ARC Wireless will pay
those wages to Marx on ARC Wireless’ regular pay periods.

    


    3.         In
lieu of health insurance for the entire term of his employment and any
extensions thereafter, plus the additional eighteen months of coverage provided
for in his Employment Agreement, para. 7.3.2 and 7.4.5, ARC Wireless will
instead continue to provide Marx and his dependents, if any, with health
insurance coverage through December 31, 2009.  It is understood that
ARC Wireless may do so, if Marx is eligible for and chooses to elect health
insurance coverage in accordance with the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”), by paying the premium payments for Marx
and his dependents, if any, through December 31, 2009.

    


    4.         Marx
shall submit to ARC Wireless any business expenses for reimbursement within
sixty days after the Resignation Date, as provided for in his Employment
Agreement, para. 5.  These expenses are approximately $7,000 in
total.

    


    5.         ARC
Wireless agrees that Marx will be released from the obligations referred to in
his Employment Agreement, para. 11 (entitled “Non-Compete”) on January 1,
2010.  If ARC Wireless completes a sale of its Antenna Division prior
to January 1, 2010, ARC Wireless may elect to release Marx from the Non-Compete
obligations at that time.

    


    
      
        
        

      

      
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    6.         Both
Parties agree to cooperate with the other to effectuate this
Agreement.  Specifically, Marx agrees to provide reasonable
consultation services to ARC Wireless, upon request and reasonable notice,
through December 31, 2009, and ARC Wireless agrees to cooperate reasonably
with the removal of Marx’s restrictions on his stock certificates at such time
that Marx might elect and that such removal is authorized by applicable laws and
regulations.

    


    7.         Marx’s
Release and Covenant Not To Sue: In consideration for the benefits described
herein and for other good and valuable consideration, Marx, on behalf of
himself, his heirs, executors, attorneys, representatives and each of their
successors and assigns, hereby forever releases ARC Wireless and its
subsidiaries and affiliated entities and each such entity’s past and present
officers, directors, shareholders, employees, members, agents, representatives
and attorneys, and each of their respective predecessors, successors and
assigns, from any and all claims, demands, suits, actions, charges or causes of
action of any nature whatsoever, whether known or unknown, based on any act,
omission, conduct, policy, practice, occurrence or incident up to and including
the Resignation Date (“Claims”), including without limitation Claims relating in
any way to his employment with ARC Wireless and the termination
thereof.  This release includes without limitation Claims for
discrimination, harassment, retaliation or any other unlawful act under Title
VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and
other federal, state, county or local laws; Claims for breach of any contract;
Claims for wrongful discharge; Claims for emotional distress, defamation,
misrepresentation, or any other personal injury or tort; Claims for unpaid
compensation; Claims relating to benefits, Claims for attorneys' fees and costs,
and Claims under any federal, state or local law or cause of
action.  Marx represents that he has not filed or asserted any such
Claims and further agrees not to assert or file any such Claims in the future to
the fullest extent permitted by law.  It is understood and agreed that
the foregoing Release does not apply to claims for breach of this
Agreement.

    


    8.         ARC
Wireless' Release and Covenant Not To Sue:  In consideration for the
promises contained herein, ARC Wireless, on behalf of itself and its affiliates
and its and their past and present officers, directors, employees, members,
agents, representatives and attorneys, and each of their respective
predecessors, successors and assigns, hereby forever fully releases and
discharges Marx, his heirs, executors, attorneys, representatives and each of
their successors and assigns, from any and all Claims, including without
limitation Claims relating in any way to his employment with ARC Wireless and
the termination thereof. ARC Wireless further agrees not to institute any such
Claims in the future to the fullest extent permitted by
law.  Notwithstanding the foregoing, it is understood and agreed that
the release set forth in this Section 8 does not include Claims for fraud
(constructive or actual fraud) or breach of this Agreement.  It is
also understood that ARC Wireless’ indemnification obligations, including Art.
VI of its Amended and Restated Bylaws and para. 8 of Marx’s Employment
Agreement, survive this Agreement.

    


    9.         Marx
waives all claims for reinstatement or employment with ARC Wireless and its
affiliates, and its and their successors and assigns, and he agrees never to
seek such reinstatement or employment in the future unless ARC Wireless asks him
to do so in writing.

    


    10.         Each
of the Parties agrees he/it will not make or cause to be made, any statements
that disparage, defame or damage the reputation of the other.

    


    11.         Except
as otherwise expressly provided herein, the Parties represent that they
heretofore have maintained, and agree that they shall continue to maintain, the
confidentiality of the terms of this Agreement.  Neither Party shall
disclose this Agreement or any of its terms to any other person or entity,
except as may be necessary to effectuate the Agreement, or in a legal proceeding
to enforce this Agreement, or as may otherwise be required by law or court
order.  Notwithstanding the foregoing, Marx may disclose this
Agreement or its terms to his attorneys, accountants and immediate family
members, but only if they agree to the confidentiality restrictions in this
Section 11 and Marx guarantees such compliance.  Likewise, ARC
Wireless may disclose this Agreement to its officers, directors, employees with
a need to know and its attorneys and accountants, but only if they agree to the
confidentiality restrictions in this Section 11 and ARC Wireless guaranties such
compliance.

    


    
      
        
        

      

      
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    12.         Notwithstanding
anything set forth in this Agreement, Marx agrees and acknowledges that the
Proprietary Information and Invention Agreement executed by ARC Wireless and
Marx on January 31, 2008 shall remain in full force and effect in accordance
with the terms and conditions set forth therein.

    


    13.         The
Parties acknowledge that the amounts to be paid hereunder and mutual releases
contained herein are sufficient to support this Agreement.

    


    14.         The
undersigned whose signatures appear below on behalf of each of the Parties to
this Agreement warrant and represent that they each have full power and
authority to execute this Agreement on behalf of their respective Party and to
bind their respective Party to the terms and conditions of this
Agreement.  This Agreement shall inure to the benefit of and be
binding upon the Parties executing this Agreement, together with their
successors and assigns.

    


    15.         Except
as required by law or court order, Marx shall not directly or indirectly provide
any assistance or information to any person or entity asserting or intending to
assert any litigation, investigation or proceeding against ARC Wireless or any
of its affiliates.

    


    16.         Marx
shall provide reasonable cooperation and assistance to ARC Wireless in the event
ARC Wireless or any of its affiliates becomes involved in any investigation,
litigation or proceeding about which Marx has knowledge.  ARC Wireless
shall reimburse Marx for all reasonable and necessary expenses Marx incurs in
complying with this Section 16.

    


    17.         The
Parties hereby declare that they have each read all of the terms of this
Agreement and that they fully understand all the terms of this
Agreement.  The Parties acknowledge that they have had the advice of,
or the opportunity for the advice of, legal counsel of their choice with regard
to this Agreement.

    


    18.         The
Parties agree that they have each had input into the drafting and revising of
this Agreement and that it shall not, therefore, be interpreted against any of
them as its drafter.

    


    19.         This
Agreement may be executed in counterparts, each of which shall be deemed the
original for all purposes, but all of which taken together shall constitute one
and the same Agreement.

    


    20.         This
Agreement shall be interpreted pursuant to Colorado law.  If any
provision in this Agreement shall be declared unenforceable by any
administrative agency or court of law, the remainder of the Agreement shall
remain in full force and effect and shall be binding upon the parties as if the
invalidated provision was not part of this Agreement.

    


    21.         The
Parties agree that if legal action is necessary to enforce the terms of this
Agreement, then the prevailing Party shall be entitled to an award of its costs
and reasonable attorney’s fees.

    


    22.         This
Agreement constitutes the entire understanding and agreement between the Parties
and cannot be amended, supplemented or changed, nor can any provision be waived
or terminated except by a written instrument signed by the Party against whom
enforcement of any such amendment, supplement, modification, waiver or
termination is sought. With the exception of certain surviving clauses, as noted
in this Agreement, the prior Employment Agreement will be
terminated.

    


    
      
        
        

      

      
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    23.         The
warranties and representations of the parties contained in this Agreement are
deemed to survive the execution and effectiveness of this
Agreement.

    


    AGREED TO AND
ACCEPTED:

    


    
      	
              By
      Randall P. Marx:

               

              /s/
      Randall P. Marx

              Randall
      P. Marx

               

              Dated:
      November 18, 2008

            	
              By
      ARC Wireless Solutions, Inc.

               

              By:
      /s/ Jason T.
      Young

               

              Jason
      T. Young

              (print
      name)

               

              Chief
      Executive Officer

              (print
      title)

               

              Dated:
      November 18, 2008

            


    

    


     

     

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