Executive Employment Agreement between Somera Comm., Inc. and Michael Foliano



 Exhibit 10.29 
  
 SOMERA COMMUNICATIONS SALES, INC. 
  
 MICHAEL FOLIANO EMPLOYMENT AGREEMENT 
  
 This Agreement is entered into and shall be effective as of August 2, 2004 (the “Effective Date”) by and between
Somera Communications Sales, Inc. (the ”Company”), and Michael Foliano (“Executive”). 
  
 1. Duties and Scope of Employment. 
  
 (a) Positions and Duties. As of the Effective Date, Executive will serve as Vice President of Operations of the Company. Executive will render such
business and professional services in the performance of Executive’s duties, consistent with Executive’s position within the Company, and shall initially report to the Company’s Chief Executive Officer. The period of Executive’s
employment under this Agreement is referred to herein as the “Employment Term.” It is expressly understood that nothing in the foregoing shall preclude the Company from making any organizational and reporting changes it may deem necessary
to most effectively operate the business of the Company. 
  
 (b)
Obligations. During the Employment Term, Executive will perform Executive’s duties faithfully and to the best of Executive’s ability and will devote Executive’s full business efforts and time to the Company. For the duration of
the Employment Term, 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. 
  
 2. At-Will Employment. The parties agree that Executive’s
employment with the Company will be “at-will” employment and may be terminated at any time with or without cause or notice. Executive understands and agrees that neither Executive’s job performance nor promotions, commendations,
bonuses or the like from the Company give rise to or in any way serve as the basis for modification, amendment, or extension, by implication or otherwise, of Executive’s employment with the Company. 
  
 3. Compensation. 
  
 (a) Base Salary. During the Employment Term, the Company will pay
Executive as compensation for Executive’s services a base salary at the annualized rate of $205,000 (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. 
  
 (b)
Bonus. Executive shall be a participant in the Company’s 2004 Executive Bonus Plan or such equivalent successor plan (the “Incentive Plan”) as may be adopted by the Company and be eligible to earn an annual bonus of up
to $80,000 to be paid according to the terms of the Incentive Plan. 
  
 (c) Stock Option. The Company shall recommend to the Company’s Board of Directors (the “Board”) that Executive 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 250,000 shares of the Company’s Common Stock at an exercise price equal to the price per share of the Company’s Common Stock as
listed on the Nasdaq National Market on the date of grant as determined by the Board (the “Option”). Subject to the accelerated vesting provisions set forth herein, the Option will vest as to 25% of the shares subject to the Option one
year after the date of grant, and as to 1/48th of the shares subject to the Option monthly thereafter, so that the Option will be fully vested and exercisable four (4) years from the date of grant, subject to Executive’s continued service to
the Company on the relevant vesting dates. The Option will be subject to the terms, definitions and provisions of the Company’s 1999 Stock Option 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. 
  
 (d) Relocation Expense Reimbursement. The Company will provide Executive with reimbursement of reasonable moving expenses to be incurred by
Executive during Executive’s relocation from Executive’s current primary residence in the Randolph, New Jersey area to the Dallas, Texas area. 
  
 4. Employee Benefits. 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, and flexible-spending account plans. The
Company reserves the right to cancel or change the benefit plans and programs it offers to its employees at any time. 
  
 5. Vacation. Executive will be entitled to paid vacation of two (2) weeks per year in accordance with the Company’s vacation policy, with the
timing and duration of specific vacations mutually and reasonably agreed to by the parties hereto. 
  
 6. Expenses. 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. 
  
 7. Severance. 
  
 (a) Involuntary Termination. If Executive’s employment with the Company terminates as a result of “Constructive Termination” (as
defined herein) or other than voluntarily or for “Cause” (as defined herein), 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 (i)
continuing payments of severance pay (less applicable withholding taxes) at a rate equal to Executive’s Base Salary rate, as then in effect, for a period of six (6) months from the date of such termination, to be paid periodically in accordance
with the Company’s normal payroll policies; and (ii) an amount equal to the aggregate of the bonus amounts earned by and paid to Executive for the two (2) fiscal quarters prior to the date upon which Executive’s employment with the Company
terminates (less applicable withholding taxes). In no event shall Executive be entitled to any bonus amounts under the Incentive Plan for the period in which Executive’s employment with the 
  

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 Company terminates. Additionally, the Company shall waive the cost for the Executive to continue Executive’s group
medical coverage with the Company should Executive decide to exercise Executive’s right to do so in accordance with Title X of the Consolidated Budget Reconciliation Act of 1985, as amended (“COBRA”). Such waiver of cost shall cease
upon the earlier of six (6) months from the effective date of such coverage or the date in which the Executive obtains equivalent coverage elsewhere. 
  
 (b) Voluntary Termination; Termination for Cause. If Executive’s employment with the Company terminates voluntarily by Executive or for
“Cause” by the Company, then (i) all vesting of the Option will terminate immediately and all payments of compensation by the Company to Executive hereunder will terminate immediately (except as to amounts already earned), and (ii)
Executive will only be eligible for severance benefits in accordance with the Company’s established policies as then in effect. 
  
 (c) Change of Control. If within twelve (12) months following a “Change of Control” (as defined below) (i) Executive terminates his or
her employment with the Company or successor corporation other than voluntarily, (ii) Executive terminates his or her employment with the Company or successor corporation as a result of Construction Termination, or (iii) the Company or the successor
corporation terminates Executive’s employment with the Company or successor corporation for other than “Cause”, death or disability, then 25% of the shares subject to (x) the Option, and (y) any other options granted to Executive in
prior periods or subsequent to the date of the Option (the “Additional Options”), shall vest and become exercisable at such time. Thereafter, the Option and the Additional Options will continue to be subject to the terms, definitions and
provisions of the Option Plan and the respective Option Agreements. 
  
 8. Definitions. 
  
 (a) Cause. For
purposes of this Agreement, “Cause” is defined as: (i) an act of dishonesty made by Executive in connection with Executive’s responsibilities as an employee, (ii) Executive’s conviction of, or plea of nolo contendere to, a
felony, (iii) Executive’s gross misconduct, which shall include, but is not limited to, fraud, theft, embezzlement, breach of the Company’s Code of Conduct and Conflicts of Interest policy on the part of the Executive and any material
breach of the Executive’s responsibilities as an employee or (iv) Executive’s continued substantial violations of Executive’s employment duties after Executive has received a written demand for performance from the Company which
specifically sets forth the factual basis for the Company’s belief that Executive has not substantially performed Executive’s duties. 
  
 (b) Change of Control. For purposes of this Agreement, “Change of Control” of the Company is defined as: (i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 50% or more of the total voting power represented by the Company’s then outstanding voting securities; or (ii) a change in the composition of the Board occurring within a two-year period, as a result of which fewer than a majority
of the directors are Incumbent Directors. “Incumbent Directors” will mean directors who either (A) are directors of the Company as of the date hereof, or (B) are elected, or nominated for election, to the Board with the affirmative votes
of at least a majority of the Incumbent Directors at the time of such election or nomination (but will not include an individual 
  

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 whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of
directors to the Company); (iii) the date of the consummation of a merger or consolidation of the Company with any other corporation that has been approved by the stockholders of the Company, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the total
voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company; or (iv)
the date of the consummation of the sale or disposition by the Company of all or substantially all the Company’s assets. 
  
 (c) Constructive Termination. For purposes of this Agreement, “Constructive Termination” is defined as the resignation of Executive
within sixty (60) days following: (i) a material reduction in Executive’s Base Salary, (ii) a material reduction in Executive’s authority or duties, or (iii) the relocation of Executive to a facility or location more than fifty (50) miles
from Executive’s then present location and then present residence, without Executive’s written consent; provided that this part (iii) shall not be applicable to Executive’s proposed move to Dallas, Texas expected to occur by November
30, 2004. 
  
 9. Confidential Information. Executive agrees
to enter into the Company’s standard Confidential Information and Invention Assignment Agreement (the “Confidential Information Agreement”) upon commencing employment hereunder. 
  
 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 twelve (12) months following the termination of Executive’s employment with the
Company, 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 7 (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 with Company or is a customer of the Company. Upon any breach of this section, all severance payments pursuant to this Agreement shall immediately cease. 
  
 (b) Non-Solicitation. Until the date twelve (12) months after the
termination of Executive’s employment with the Company for any reason, Executive agrees and acknowledges that Executive’s right to receive the severance payments set forth in Section 7 (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. 
  

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 (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 Executive’s obligations hereunder, including, without limitation, the reasonableness of the length of time, scope and geographic coverage of these covenants. 
  
 11. 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. 
  
 12. Notices. All notices, requests, demands and other communications called for hereunder shall be in writing and shall be deemed given (i) on the
date of delivery if delivered personally, (ii) one (1) day after being sent by a well established commercial overnight service, or (iii) 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: 
  
 If to the Company: 
  
 Somera Communications Sales, Inc. 
 5383 Hollister Avenue 
 Santa Barbara, California 93111 
 Attention: General Counsel 
  
 If to Executive: 
  
 at the last residential address known by the Company. 
  
 13. 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. 
  
 14. Arbitration. The parties agree that any controversy or claim arising out of or relating to this Agreement, or any dispute arising out of the
interpretation or application of this Agreement, which the parties hereto are unable to resolve, shall be finally resolved and settled exclusively by arbitration as provided in the Arbitration Agreement between the Company and the Executive which is
incorporated by reference herein. 
  
 15. Integration. This
Agreement, together with the Option Plan, Option Agreement, the Arbitration Agreement and the Confidential Information Agreement 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, including but not limited to, that certain offer 
  

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 letter dated as of June 29, 2004, by and between the Company and Executive. 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. 
  
 16. Tax Withholding. All payments made pursuant to this Agreement will be subject to withholding of applicable taxes. 
  
 17. Governing Law. This Agreement will be governed by the laws of the
State of California (with the exception of its conflict of laws provisions). 
  
 18. Acknowledgment. Executive acknowledges that he has had the opportunity to discuss this matter with and obtain advice from Executive’s private attorney, has had sufficient time to, and has carefully
read and fully understands all the provisions of this Agreement, and is knowingly and voluntarily entering into this Agreement. 
  

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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:

  

					
	 SOMERA COMMUNICATIONS SALES, INC.
	 	 
			
	 By:
	 	 /s/ David W. Heard

	 	 Date: August 2, 2004

	 Name:
	 	 David W. Heard
	 	 
	 Title:
	 	 President and Chief Executive Officer
	 	 
		
	 EXECUTIVE:
	 	 
		
	 /s/ Michael Foliano

	 	 Date: August 2, 2004

	 Michael Foliano
	 	 

  

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