exv10w4



 







Exhibit 10.4









Larry Brittain

694 Morse Street

San Jose, CA 95126




     Re:     Employment Agreement


Dear Larry:




     This letter sets forth the terms of your continued employment with Stratex Networks, Inc. (the
“Company”) as well as our understanding with respect to any termination of that employment
relationship. This Agreement is effective as of April 1, 2006 and supersedes all prior agreements.



     1. Position and Duties. You are employed by the Company as its Vice President,
Worldwide Sales and Services. You accept continued employment with the Company on the terms and
conditions set forth in this Agreement, and you agree to devote your full business time, energy and
skill to your duties at the Company.



     2. Term of Employment. Your employment with the Company is for no specified term,
and may be terminated by you or the Company at any time, with or without cause, subject to the
provisions of Paragraphs 4 and 5 below.



     3. Compensation. You will be compensated by the Company for your services as
follows:



          (a) Salary: Effective April 1, 2006, you will be paid a monthly base salary of
$20,833.00, less applicable withholding, in accordance with the Company’s normal payroll
procedures. Your salary may be reviewed from time to time, and may be subject to adjustment based
upon various factors including, but not limited to, your performance and the Company’s
profitability. Any adjustment to your salary shall be made at the sole discretion of the Company.
Your base salary will not be reduced except as part of a salary reduction program that similarly
affects all members of the executive staff reporting to the Chief Executive Officer of the Company.




          (b) Bonus: To the extent that the Company has one, you will be eligible to
participate in any Company executive incentive bonus plan.




          (c) Benefits: You will have the right, on the same basis as other employees of the
Company, to participate in and to receive benefits under any Company medical, disability or other
group insurance plans, as well as under the Company’s business
expense reimbursement




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Brittain Employment Agreement



and other policies. You will accrue paid vacation in accordance with the Company’s vacation policy or other
arrangements made by the Company.




     4. Voluntary Termination. In the event that you voluntarily resign from your
employment with the Company, or in the event that your employment terminates as a result of your
death, you will be entitled to no compensation or benefits from the Company other than those earned
under Paragraph 3 through the date of your termination. You agree that if you voluntarily
terminate your employment with the Company for any reason, you will provide the Company with at
least 10 days’ written notice of your resignation. The Company shall have the option, in its sole
discretion, to make your resignation effective at any time prior to the end of such notice period,
provided the Company pays you an amount equal to the base salary you would have earned through the
end of the notice period.



     5. Other Termination. Your employment may be terminated under the circumstances set
forth below.



          (a) Termination by Disability. If, by reason of any physical or mental incapacity,
you have been or will be prevented from performing your then-current duties under this Agreement
for more than three consecutive months, then, to the extent permitted by law, the Company may
terminate your employment without any advance notice. Upon such termination, if you sign a general
release of known and unknown claims in a form satisfactory to the Company, the Company will provide
you with the severance payments and benefits described in Paragraph 5(c). Nothing in this
paragraph shall affect your rights under any applicable Company disability plan; provided, however,
that your severance payments will be offset by any disability income payments received by you so
that the total monthly severance and disability income payments during your severance period shall
not exceed your then-current base salary.




          (b) Termination for Cause or Death: The Company may terminate your employment at any
time for cause (as described below). If your employment is terminated by the Company for cause, or
if your employment terminates as a result of your death, you shall be entitled to no compensation
or benefits from the Company other than those earned under Paragraph 3 through the date of your
termination for cause. Provided, however, that if your employment terminates as a result of your
death, the Company will also pay your estate the prorated portion of any incentive bonus that you
would have earned during the incentive bonus period in which your employment terminates; such
prorated bonus will be paid at the time that incentive bonus is paid to other Company employees.




     For purposes of this Agreement, a termination “for cause” occurs if you are terminated for any
of the following reasons: (i) theft, dishonesty, misconduct or falsification of any employment or
Company records; (ii) improper disclosure of the Company’s confidential or proprietary information;
(iii) any action by you which has a material detrimental effect on the Company’s reputation or
business; (iv) your refusal or inability to perform any assigned duties (other than as a result of
a disability) after written notice from the Company to you of, and a reasonable opportunity to
cure, such failure or inability; or (v) your conviction (including any plea of guilty or no
contest) for any criminal act that impairs your ability to perform your duties under this
Agreement.



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Brittain Employment Agreement




          (c) Termination Without Cause: The Company may terminate your employment without
cause at any time. If your employment is terminated by the Company without cause, and
you sign a general release of known and unknown claims in a form satisfactory to the Company,
you will receive the following severance benefits:




               (i) severance payments at your final base salary rate for a period of twelve (12) months
following your termination; such payments will be made in accordance with the Company’s normal
payroll practices;



               (ii) payment of the premiums necessary to continue your group health insurance under COBRA (or
to purchase other comparable health insurance coverage on an individual basis if you are no longer
eligible for COBRA coverage) until the earlier of (x) twelve (12) months following your termination
date; or (y) the date you first became eligible to participate in another employer’s group health
insurance plan;



               (iii) the Company will pay you the prorated portion of any incentive bonus that you would have
earned during the incentive bonus period in which your employment terminates; such prorated bonus
will be paid to you at the time that incentive bonus is paid to other Company employees;



               (iv) with respect to any stock options granted to you by the Company, you will cease vesting
upon your termination date; however, you will be entitled to purchase any vested shares of stock
that are subject to those options until the earlier of (x) twelve (12) months following your
termination date, or (y) the date on which the applicable option(s) expires; except as set forth in
this subparagraph, your Company stock options will continue to be subject to and governed by the
applicable stock option agreements between you and the Company;



               (v) payment of your then-provided Company car allowance for the period described in
subparagraph 5(c)(i); and



               (vi) outplacement assistance selected and paid for by the Company.



          (d) Resignation for Good Reason: If you resign from your employment with the Company
for Good Reason (as defined in this paragraph), and such resignation does not qualify as a
Resignation for Good Reason Following a Change of Control as set forth in subparagraph (e) below,
and you sign a general release of known and unknown claims in a form satisfactory to the Company,
you shall receive the severance benefits described in Paragraph 5(c). For purposes of this
paragraph, “Good Reason” means any of the following conditions, which condition(s) remain in effect
60 days after written notice from you to the Company’s Chief Executive Officer of said
condition(s):




               (i) a reduction in your base salary of 20% or more, other than a reduction that is similarly
applicable to all members of the executive staff reporting to the Chief Executive Officer of the
Company; or



               (ii) a material reduction in your employee benefits, other than a reduction that is similarly
applicable to all members of the executive staff reporting to the Chief Executive Officer of the
Company; or



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Brittain Employment Agreement




               (iii) the relocation of the Company’s workplace at which you are officed to a location that is
more than 75 miles from the Company’s workplace prior to such relocation.



     The foregoing condition(s) shall not constitute “Good Reason” if you do not provide the Chief
Executive Officer with the notice described above within 45 days after you first become aware of
the condition(s).



          (e) Termination or Resignation For Good Reason Following a Change of Control: If,
within 18 months following any Change of Control (as defined below), your employment is terminated
by the Company without cause, or if you resign from your employment with the Company for Good
Reason Following a Change of Control (as defined below), and you sign a general release of known
and unknown claims in a form satisfactory to the Company, you shall receive the severance benefits
described in Paragraph 5(c); provided, that the time period set forth in subparagraph 5(c)(i),
(ii), (iv)(x), and (v) shall be increased by an additional twelve (12) months. In addition, you
shall receive a payment equal to the greater of (i) the average of the annual incentive bonus
payments received by you, if any, for the previous three years, or (ii) your target incentive bonus
for the year in which your employment terminates. Such payment will be made to you within 15 days
following your execution of the general release of claims described above. The Company will also
accelerate the vesting of all unvested stock options granted to you by the Company such that all of
your Company stock options will be fully vested as of the date of your termination/resignation.




     6. Change of Control/Good Reason.



          (a) For purposes of this Agreement, a “Change of Control” of the Company shall mean:




               (i) The direct or indirect acquisition by any person or related group of persons (other than
an acquisition from or by the Company or by a Company-sponsored employee benefit plan or by a
person that directly or indirectly controls, is controlled by, or is under common control with the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of
securities possessing more than fifty percent (50%) of the total combined voting power of the
Company’s outstanding securities pursuant to a tender or exchange offer made directly to the
Company’s stockholders which a majority of the Continuing Directors who are not Affiliates or
Associates of the offeror do not recommend such stockholders accept;



               (ii) a change in the composition of the Board over a period of thirty-six (36) months or less
such that a majority of the Board members (rounded up to the next whole number) ceases, by reason
of one or more contested elections for Board membership, to be comprised of individuals who are
Continuing Directors;



               (iii) a merger or consolidation in which the Company is not the surviving entity, except for a
transaction the principal purpose of which is to change the state in which the Company is
incorporated;



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Brittain Employment Agreement




               (iv) the sale, transfer or other disposition of all or substantially all of the assets of the
Company (including the capital stock of the Company’s subsidiary corporations);



               (v) the complete liquidation or dissolution of the Company;



               (vi) any reverse merger in which the Company is the surviving entity but in which securities
possessing more than [forty percent (40%)] of the total combined voting power of the Company’s
outstanding securities are transferred to a person or persons different from those who held such
securities immediately prior to such merger; or



               (vii) the acquisition in a single or series of related transactions by any person or related
group of persons (other than the Company or by a Company-sponsored employee benefit plan) of
beneficial ownership ( within the meaning of Rule 13d-3 of the Exchange Act) of securities
possessing more than [forty percent (40%)] of the total combined voting power of the Company’s
outstanding securities but excluding any such transaction or series of related transactions that
the Administrator of the Company Stock Option Plan determines shall not be a Corporate Transaction.


For the purposes of this Agreement, the terms “Continuing Directors,” “Corporate Transaction,”
“Affiliate” and “Associate” shall have the meanings ascribed to such terms in the Company’s Stock
Option Plan.




          (b) For purposes of this Agreement, “Good Reason Following a Change of Control” means any of
the following conditions, which condition(s) remain in effect 60 days after written notice from you
to the Company’s Chief Executive Officer of said condition(s):




               (i) a material and adverse change in your position, duties or responsibilities for the
Company, as measured against your position, duties or responsibilities immediately prior to the
Change of Control; or



               (ii) a reduction in your base salary as measured against your base salary immediately prior to
the Change in Control; or



               (iii) a material reduction in your employee benefits, other than a reduction that is similarly
applicable to all members of the executive staff reporting to the Chief Executive Officer of the
Company; or



               (iv) the relocation of the Company’s workplace at which you are officed to a location that is
more than 75 miles from the Company’s workplace prior to such relocation for the Company.


The foregoing condition(s) shall not constitute “Good Reason Following a Change of Control” if you
do not provide the Chief Executive Officer with the notice described above within 45 days after you
first become aware of the condition(s).




     7. Confidential and Proprietary Information: As a condition of your continued
employment, and to the extent that you have not done so already, you agree to sign and abide by



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Brittain Employment Agreement



the Company’s standard form of employee proprietary information/confidentiality/assignment of
inventions agreement.




     8. Termination Obligations.



          (a) You agree that all property, including, without limitation, all equipment, proprietary
information, 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 you in the course of or incident to your employment, belongs to the
Company and shall be returned to the Company promptly upon any termination of your employment.




          (b) Upon your termination for any reason, and as a condition of your receipt of any severance
benefits hereunder, you will promptly resign in writing from all offices and directorships then
held with the Company or any affiliate of the Company.




          (c) Following the termination of your employment with the Company for any reason, you shall
fully cooperate with the Company in all matters relating to the winding up of pending work on
behalf of the Company and the orderly transfer of work to other employees of the Company. You
shall also cooperate in the defense of any action brought by any third party against the Company.




     9. Limitation of Payments and Benefits.



          To the extent that any of the payments and benefits provided for in this Agreement or
otherwise payable to you (the “Payments”) constitute “parachute payments” within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the amount of such
Payments shall be either:




                    the full amount of the Payments, or



                    a reduced amount which would result in no portion of the Payments being subject to the excise
tax imposed pursuant to Section 4999 of the Code (the “Excise Tax”),



          whichever of the foregoing amounts, taking into account the applicable federal, state and
local income taxes and the Excise Tax, results in the receipt by you, on an after-tax basis, of the
greatest amount of benefit. In the event that any Excise Tax is imposed on the Payments, you will
be fully responsible for the payment of any and all Excise Tax, and the Company will not be
obligated to pay all or any portion of any Excise Tax.




     10. Other Activities. In order to protect the Company’s valuable proprietary
information, you agree that during your employment and for a period of [one] year[s] following the
termination of your employment with the Company for any reason, you will not, as a compensated or
uncompensated officer, director, consultant, advisor, partner, joint venturer, investor,
independent contractor, employee or otherwise, provide any labor, services, advice or assistance to
any entity or its successor, which is a direct competitor of the Company (and specifically
identified as such in the Company’s Form 10K), unless specifically permitted to do



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Brittain Employment Agreement



so in writing by the Company or its successor. You acknowledge and agree that the
restrictions contained in the preceding sentence are reasonable and necessary, as there is a
significant risk that your provision of labor, services, advice or assistance to any of those
competitors could result in the inevitable disclosure of the Company’s proprietary information.
You further acknowledge and agree that the restrictions contained in this paragraph will not
preclude you from engaging in any trade, business or profession that you are qualified to engage
in.




     11. Dispute Resolution. In the event of any dispute or claim relating to or arising
out of your employment relationship with the Company, this Agreement, or the termination of your
employment with the Company for any reason (including, but not limited to, any claims of breach of
contract, wrongful termination or age, sex, race, sexual orientation, disability or other
discrimination or harassment), you and the Company agree that all such disputes shall be fully,
finally and exclusively resolved by binding arbitration conducted by the American Arbitration
Association in Santa Clara County, California. You and the Company hereby knowingly and willingly
waive your respective rights to have any such disputes or claims tried to a judge or jury.
Provided, however, that this arbitration provision shall not apply to any claims for injunctive
relief by you or the Company.



     12. Severability. If any provision of this Agreement is deemed invalid, illegal or
unenforceable, such provision shall be modified so as to make it valid, legal and enforceable, and
the validity, legality and enforceability of the remaining provisions of this Agreement shall not
in any way be affected.



     13. Applicable Withholding. All salary, bonus, severance and other payments
identified in this Agreement are subject to applicable withholding by the Company.



     14. Assignment. In view of the personal nature of the services to be performed under
this Agreement by you, you cannot assign or transfer any of your obligations under this Agreement.



     15. Entire Agreement. This Agreement and the agreements referred to above constitute
the entire agreement between you and the Company regarding the terms and conditions of your
employment, and they supersede all prior negotiations, representations or agreements between you
and the Company regarding your employment, whether written or oral, including your Employment
Agreement dated May 1, 1996, with the Company. This Agreement sets forth our entire agreement
regarding the Company’s obligation to provide you with severance benefits upon any termination of
your employment, and you shall not be entitled to receive any other severance benefits from the
Company pursuant to any Company severance plan, policy or practice.



     16. Governing Law. This Agreement shall be governed by and construed in accordance
with the law of the State of California.



     17. Modification. This Agreement may only be modified or amended by a supplemental
written agreement signed by you and an authorized representative of the Company.



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Brittain Employment Agreement




     Larry, we look forward to continuing to work with you at Stratex Networks, Inc. Please sign
and date this letter on the spaces provided below to acknowledge your acceptance of the terms of
this Agreement.



Sincerely,




Stratex Networks, Inc.




	 	 	 
	By:

	 	     /S/
Charles D. Kissner
	 

	 	 
	 

	 	     Charles D. Kissner
	 

	 	     Chairman and Chief Executive Officer






     I agree to and accept continued employment with Stratex Networks, Inc. on the terms and
conditions set forth in this Agreement.



	 	 	 
	 Date:  April 14, 2006

	 	     /S/ Larry Brittain
	 

	 	 
	 

	 	     Larry Brittain







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