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-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AWb5E9kEgtQ0UpxShtS45J8CFyXR1iGQyLqDPI1bsPgaKlsYrqcqSuvtO/c2A/ZO WLui2nEEWYFud+kfx3aF2A== 0000950137-07-013972.txt : 20070910 0000950137-07-013972.hdr.sgml : 20070910 20070910121714 ACCESSION NUMBER: 0000950137-07-013972 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20070905 ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070910 DATE AS OF CHANGE: 20070910 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PC TEL INC CENTRAL INDEX KEY: 0001057083 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING, DATA PROCESSING, ETC. [7370] IRS NUMBER: 770364943 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-27115 FILM NUMBER: 071108082 BUSINESS ADDRESS: STREET 1: 8725 W. HIGGINS RD. STREET 2: SUITE 400 CITY: CHICAGO STATE: IL ZIP: 60631 BUSINESS PHONE: 773-243-3000 MAIL ADDRESS: STREET 1: 8725 W. HIGGINS RD STREET 2: SUITE 400 CITY: CHICAGO STATE: IL ZIP: 60631 8-K 1 c18505e8vk.htm CURRENT REPORT e8vk

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

September 5, 2007

Date of Report (Date of earliest event reported)

PCTEL, Inc.

(Exact name of registrant as specified in its charter)


Delaware	000-27115	77-0364943

(State or Other Jurisdiction of	(Commission File Number)	(IRS Employer
Incorporation)		Identification No.)

8725 W. Higgins Road, Suite 400
Chicago, IL 60631
(Address of Principal Executive Offices, including Zip Code)

(773) 243-3000
(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o		Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o		Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12(b))

o		Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o		Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Section 5 – Corporate Governance and Management

TABLE OF CONTENTS


Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Item 9.01 Financial Statements and Exhibits
SIGNATURE
EXHIBIT INDEX
Employment Agreement
Management Retention Agreement
Form of Performance Share Agreement


Item 5.02		Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

Amendment of CEO Employment Agreement and Management Retention Agreement

On September 5, 2007, following earlier approval of the Board of Directors, the company entered into an amended and restated Employment Agreement and an amended and restated Management Retention Agreement with Martin H. Singer, the company’s Chief Executive Officer and Chairman of the Board. Substantially all of the modifications contained in the restated agreements were made for purposes of compliance with the final tax regulations under Section 409A of the Internal Revenue Code published in April 2007.

No changes were made to the terms of either agreement relating to the financial benefits available to Mr. Singer as an employee of the company or in connection with a corporate change of control from the terms previously disclosed by the company.

Copies of the amended and restated Employment Agreement and amended and restated Management Retention Agreement have been included as Exhibits 10.61 and 10.62 to this Current Report on Form 8-K.

Execution of Performance Share Agreements for Executive Officers

On September 5, 2007, following earlier approval of the Compensation Committee of the Board of Directors, the company entered into a performance share agreement with each of Mr. Singer, John W. Schoen (Chief Financial Officer), Jeffrey A. Miller (Vice President and General Manager, Broadband Technology Group), and Biju Nair (Vice President and General Manager, Mobility Solutions Group). These agreements were entered into to memorialize the terms and conditions of performance-based restricted shares previously approved by the Board of Directors on March 16, 2007. These terms and conditions of the performance-based restricted stock grants were disclosed by the company in its Current Report on Form 8-K dated March 16, 2007.

A copy of the form of Performance Share Agreement has been included as Exhibit 10.63 to this Current Report on Form 8-K.

Section 9 – Financial Statements and Exhibits

Item 9.01 Financial Statements and Exhibits

The following exhibits are furnished herewith:

Exhibit 10.61: Employment Agreement dated September 5, 2007 between PCTEL, Inc., and Martin H. Singer

Exhibit 10.62: Management Retention Agreement dated September 5, 2007 between PCTEL, Inc., and Martin H. Singer

Exhibit 10.63: Form of Performance Share Agreement

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: September 10, 2007


	PCTEL, INC.
	By:	/s/ John W. Schoen
		John W. Schoen, Chief Financial Officer

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EXHIBIT INDEX


Exhibit
Number

Exhibit 10.61		Employment Agreement dated September 5, 2007 between PCTEL, Inc., and Martin H. Singer

Exhibit 10.62		Management Retention Agreement dated September 5, 2007 between PCTEL, Inc., and Martin H. Singer

Exhibit 10.63		Form of Performance Share Agreement

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EX-10.61 2 c18505exv10w61.htm EMPLOYMENT AGREEMENT exv10w61

Exhibit 10.61

Martin H. Singer Employment Agreement

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PCTEL, INC.

MARTIN H. SINGER EMPLOYMENT AGREEMENT

(amended and restated on September 5, 2007)

This Agreement, as amended and restated as of September 5, 2007, (the “Effective Date”), is made and entered into by and between PCTEL, Inc. (the “Company”) and Martin H. Singer (“Executive”).

1. Duties and Scope of Employment. Executive will continue to serve as the Company’s Chief Executive Officer and Chairman of the Board of Directors. Executive will render such business and professional services in the performance of his duties, consistent with Executive’s position within the Company, as shall reasonably be assigned to him by the Company’s Board of Directors (the “Board”). The period of Executive’s employment under this Agreement is referred to herein as the “Employment Term.”

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, by either the Company or Executive.

3. Compensation.

(a) Base Salary. During the Employment Term, the Company will pay Executive as compensation for his services a base salary at an annualized rate (the “Base Salary”) determined by the Board, or, if such authority is delegated, by the Compensation Committee of the Board (the “Compensation Committee”). Executive’s annual Base Salary will be reviewed on an annual basis by the Compensation Committee and the Board of Directors in accordance with the Compensation Committee’s and the Board’s established procedures for reviewing salaries of the Company’s executive officers.

(b) Bonus and Incentives. Executive shall be eligible to receive annual bonuses, long term incentives and such other elements of compensation (whether in cash or equity) as determined by and at the discretion of the Board or the Compensation Committee.

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 medical 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 four weeks per year plus one additional day for each full year of employment (commencing October 1, 2001).

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

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performance of Executive’s duties hereunder, in accordance with the Company’s expense reimbursement policy as in effect from time to time. In addition, the Company will reimburse Executive for reasonable legal expenses as may be incurred by Executive from time to time in connection with the legal review of this Agreement and any amendment to this Agreement.

7. Severance.

(a) Termination Following a Change of Control. If Executive’s employment is terminated within twelve (12) months following a Change of Control, the severance and other benefits to which Executive is entitled shall be governed by the Management Retention Agreement then in effect between the Company and Executive (which includes the definition of Change of Control).

(b) Involuntary Termination other than for Cause; Voluntary Termination for Good Reason Apart From a Change of Control. If either prior to the occurrence of a Change of Control or after the twelve (12) month period following a Change of Control, Executive’s employment with the Company is terminated either (A) involuntarily by the Company for reasons other than Cause, or (B) by Executive pursuant to a Voluntary Termination for Good Reason, and Executive signs and does not revoke a standard mutual release of claims with the Company, then, subject to Section 10, Executive shall be entitled to receive the following benefits from the Company:

(i) Salary and Bonus Continuation. Executive shall be entitled to receive continuing payments of salary (less applicable withholding taxes) at the rate equal to Executive’s Base Salary rate, as then in effect, for a period of twelve (12) months from the date of such termination in accordance with the Company’s normal payroll policies. In addition, Executive shall be entitled to receive one hundred percent (100%) of Executive’s maximum potential annual bonus (less applicable withholding taxes) as in effect for the fiscal year in which Executive’s termination occurs, payable in equal monthly installments over a period of twelve (12) months from the date of such termination in accordance with the Company’s normal payroll practices.

(ii) Benefits. The Company will reimburse Executive for the cost of Executive’s continued participation in the Company’s health, dental and vision plans at the same level of coverage as was provided to Executive immediately prior to the termination of Executive’s employment with the Company (“Company-Paid Coverage”). If such coverage included Executive’s dependents immediately prior to Executive’s termination, such dependents shall also be covered at the Company’s expense. Company-Paid Coverage shall continue until the earlier of (i) twelve (12) months following the date of the termination of Executive’s employment (the “Benefits Termination Date”), or (ii) the date upon which Executive or Executive’s dependents become covered under another employer’s group health, dental and vision insurance benefit plans. If, after twelve (12) months following the Benefits Termination Date, Executive has not become covered under another employer’s group health, dental and vision insurance benefit plans, Executive may independently obtain health, dental and vision insurance benefits comparable in the aggregate in scope and coverage to that provided by the Company to Executive immediately prior to the Benefits Termination Date, and the Company shall reimburse Executive for the cost of the premiums paid for such benefits until the earlier of (A) six (6) months following the termination of Company-Paid Coverage, or (B) the date upon which Executive and Executive’s dependents become covered under another employer’s group health, dental and vision insurance benefit plans.

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(iii) Partial Accelerated Vesting. All equity awards then held by Executive with restrictions that are time-based, subject to Executive’s continued service with the Company, shall partially accelerate or if Executive is then holding unvested shares, the Company’s right to repurchase the then-unvested shares under each such equity award shall partially lapse, with respect to the number of shares under each such award that would have become vested or been released from such repurchase right under each respective equity award if Executive’s employment with the Company had continued for an additional twelve (12) months following such termination date. All equity awards then held by Executive with restrictions that are exclusively performance-based shall immediately vest only as to those awards that are targeted for achievement during the performance year in which the employment termination occurs (regardless of any actual level of achievement subsequently determined); all other then unvested performance-based awards shall be forfeited.

(iv) Executive Deferred Compensation Plan. Executive shall be entitled to receive all amounts then owing to him under the Company’s Executive Deferred Compensation Plan based on the plan provisions as in effect on the execution date of this Agreement.

(v) Terms. The benefits set forth in this Section 7(b), together with any other benefits which Executive may be expressly entitled to receive resulting from Executive’s involuntary termination of employment pursuant to any Company severance and benefit plans and practices, or pursuant to other agreements with the Company, will be provided to Executive in accordance with the terms of the related plans or agreements.

8. Sections 280G and 4999. The Company’s obligationsto provide the compensation, equity and other benefits as set forth in Section 7 above are expressly conditioned upon Executive’s compliance with the covenants set forth in Section 13 below, and are not contingent upon any event constituting a change of effective control or ownership of the Company or in the ownership of a substantial portion of the assets of the Company. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the code, then Executive’s severance benefits under the Employment Agreement shall be payable either

	(i)		in full, or

	(ii)		as to such lesser amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code,

whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive, on an after-tax basis, of the greatest amount of severance benefits under the Employment Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of

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Sections 280G and 4999 of the Code. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

9. Voluntary Termination; Termination for Cause. If Executive’s employment is terminated by the Company for Cause, or by Executive for any reason, but other than pursuant to a Voluntary Termination for Good Reason, then (A) all further vesting of any stock option, restricted stock award or other Company equity compensation held by Executive will cease immediately and all rights to receive further compensation by the Company to Executive hereunder will terminate immediately (except as to amounts already earned), and (B) Executive will only be eligible for severance benefits in accordance with the Company’s established policies as then in effect.

10. Death and Disability. If Executive’s employment terminates as a result of death or Disability, Executive (or his estate, as applicable) shall be entitled to receive the following benefits from the Company:

(a) Salary. Executive will only be eligible for benefits in accordance with the Company’s established policies then in effect.

(b) Bonuses. Executive shall receive the target bonus in effect for the performance period during which Executive’s employment is terminated, pro rated for Executive’s length of service during the performance period up to the date of Executive’s termination. Such bonus shall be paid to Executive as soon as practicable following the completion of the performance period and the determination of the amount of bonus to be paid.

(c) Equity Incentives. All unvested equity incentives, whether time-based or performance-based, shall immediately accelerate and vest in full, and all repurchase restrictions in favor of the Company shall immediately lapse. Performance-based incentives in which a range of incentives above or below the target may be earned dependent on the achievement of different levels of performance, which this section shall accelerate and vest as to the targeted number of incentives.

(d) Executive Deferred Compensation Plan. In the event of Executive’s death, Executive shall be entitled to receive the death benefit in accordance with the provisions of the Executive Deferred Compensation Plan.

11. Section 409A.

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within the first six (6) months following Executive’s termination of employment in accordance with the payment schedule applicable to each such payment or benefit. For these purposes, each severance payment is hereby designated as a separate payment and will not collectively be treated as a single payment. Any portion of the Deferred Compensation Separation Benefits in excess of the Section 409A Limit shall accrue and, to the extent such portion of the Deferred Compensation Separation Benefits would otherwise have been payable within the first six (6) months following Executive’s termination of employment, will 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 Executive’s termination of employment. All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit.

(b) Amendment. This provision is intended to comply with the requirements of Section 409A so that none of the Deferred Compensation Separation Benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Executive 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 Executive under Section 409A.

(c) Section 409A Limit. For purposes of this Agreement, “Section 409A Limit” shall mean the lesser of two (2) times: (i) Executive’s annualized compensation based upon the annual rate of pay paid to Executive during the Company’s taxable year preceding the Company’s taxable year of Executive’s 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.

12. Definitions.

(a) Cause. “Cause” shall mean:

(i) An act of personal dishonesty taken by Executive in connection with his responsibilities as an employee and intended to result in substantial personal enrichment of Executive;

(ii) Executive being convicted of, or a plea of nolo contendere to, a felony;

(iii) A willful act by Executive which constitutes gross misconduct and which is injurious to the Company; or

(iv) Following delivery to Executive of a written demand for performance from the Company which describes the basis for the Company’s reasonable belief that Executive has not substantially performed his duties, continued violations by Executive of Executive’s obligations to the Company which are demonstrably willful and deliberate on Executive’s part and affords Executive a reasonable opportunity to cure within a reasonable period of time.

(b) Disability. “Disability” shall mean that:

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(i) Executive is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months;

(ii) Executive by reason any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for at least three (3) months under the Company’s accident and health plan; or

(iii) Executive is determined to be totally disabled by the Social Security Administration.

(c) Voluntary Termination for Good Reason. “Voluntary Termination for Good Reason” shall mean Executive voluntarily resigns after the occurrence of any of the following without Executive’s express written consent:

(i) A material reduction of Executive’s duties, authority or responsibilities (including any change in title that would compromise Executive’s direct reporting responsibility to the Board), relative to Executive’s duties, authority or responsibilities as in effect immediately prior to such reduction, or the assignment to Executive of such reduced duties, authority or responsibilities; provided, however, that a “Voluntary Termination for Good Reason” shall not be deemed to have occurred in connection with a reduction of duties, title, authority or responsibilities resulting solely from any change in Executive’s position as Chairman of the Board as a result of any legislation, statute, rule or regulation (including rule or regulation of Nasdaq) that would require, or encourage for purposes of prudent corporate governance, the separation of the roles of the Chairman and the Chief Executive Officer, or any stockholder proposal to similar effect approved by a majority of the stockholders;

(ii) A material reduction, without good business reasons, of the facilities and perquisites (including office space and location) available to Executive immediately prior to such reduction;

(iii) A material reduction by the Company in the Base Salary of Executive as in effect immediately prior to such reduction;

(iv) A material reduction by the Company in the aggregate level of employee benefits, including bonuses, to which Executive was entitled immediately prior to such reduction with the result that Executive’s aggregate benefits package is materially reduced (other than a reduction that generally applies to Company employees); or

(v) Any act or set of facts or circumstances which would, under Illinois case law or statute, constitute a constructive termination of Executive.

Provided, however, that before Executive’s employment may be terminated by a Voluntary Termination for Good Reason, (A) Executive must provide written notice to the Company, within ninety (90) days of the initial existence of the Voluntary Termination for Good Reason condition, setting forth the reasons for Executive’s intention to terminate his employment as a result of a Voluntary Termination for Good Reason and (B) the Company must have an opportunity within

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thirty (30) days following delivery of such notice to cure the Voluntary Termination for Good Reason condition.

13. 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 (the “Restricted Period”) with the Company for any reason (whether during the Employment Term or subsequent to the end of such period), it would be very difficult for Executive not to rely on or use the Company’s trade secrets and confidential information. Thus, Executive agrees and acknowledges that his right to receive the severance payments and benefits set forth in Section 7 (to the extent Executive is otherwise entitled to such payments and benefits) 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 interest in or participating in the financing, operation, management or control of, any person, firm, corporation or business that competes in the markets for the Restricted Business (as defined below) during the Restricted Period; provided, however, that nothing in this Section 13(a) shall prevent Executive from owning as a passive investment less than one percent (1%) of the outstanding shares of the capital stock of a publicly-held company if (A) such shares are actively traded on the New York Stock Exchange or the Nasdaq Global Market and (B) Executive is not otherwise associated with such company or any of its affiliates. The “Restricted Business” for purposes of this Agreement is one which is engaged in the design, development, manufacture, production, marketing, sale, licensing or servicing of any products, or the provision of any services, that are the same as or substantially similar to those of the Company during the Restricted Period. Upon any breach of this section, all severance payments and benefits pursuant to this Agreement shall immediately cease.

(b) Non-Solicitation. During the twelve (12) months following the termination of Executive’s employment with the Company for any reason (whether during or after the Employment Term), Executive agrees and acknowledges that Executive’s right to receive the severance payments and benefits set forth in Section 7 (to the extent Executive is otherwise entitled to such payments and benefits) 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.

14. Assignment. This Agreement will inure to the benefit of the heirs, executors and legal representatives of Executive upon Executive’s death and will be binding upon and inure to the benefit of 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.

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15. 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:

PCTEL, Inc.
8725 West Higgins Road
Suite 400
Chicago, Illinois 60631
Attn: General Counsel

If to Executive:

Martin H. Singer
at the last residential address known by the Company.

16. 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.

17. Arbitration and Equitable Relief.

(a) Arbitration. Except as provided in Section 17(b) below, Executive agrees that any dispute or controversy arising out of, relating to, or concerning Executive’s employment with the Company or the termination of Executive’s employment with the Company, or any interpretation, construction, performance or breach of this Agreement, shall be settled by arbitration to be held in Cook County, Illinois, in accordance with the National Rules for Resolution of Employment Disputes then in effect of the American Arbitration Association, except as provided in Section 17(b) below. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The Company and Executive shall each pay one-half of the costs and expenses of such arbitration, and each party shall separately pay its counsel fees and expenses.

This arbitration clause constitutes a waiver of Executive’s and the Company’s right to a jury trial and relates to the resolution of all disputes relating to all aspects of the employer/employee relationship, including, but not limited to, the following claims:

(i) Any and all claims for wrongful discharge of employment; breach of contract, both express and implied; breach of the covenant of good faith and fair dealing, both express and implied; negligent or intentional infliction of emotional distress; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; and defamation;

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(ii) Any and all claims for violation of any federal, state or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, and the Fair Labor Standards Act; and

(iii) Any and all claims arising out of any other laws and regulations relating to employment or employment discrimination.

(b) Equitable Remedies. Executive agrees that it would be impossible or inadequate to measure and calculate the Company’s damages from any breach of the covenants set forth in Section 13. Accordingly, Executive agrees that if Executive breaches such covenants, the Company will have available, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this Agreement. Executive further agrees that no bond or other security shall be required in obtaining such equitable relief, and Executive hereby consents to the issuance of such injunction and to the ordering of specific performance.

(c) Administrative Relief. Executive understands that this Agreement does not prohibit Executive from pursuing an administrative claim with a local, state or federal administrative body, such as the Illinois Department of Human Rights, the Equal Employment Opportunity Commission or the Workers’ Compensation Commission. This Agreement does, however, preclude Executive from pursuing court action regarding any such claim (other than workers’ compensation claims).

18. Integration. This 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 any consulting or independent contractor agreements. 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.

19. Tax Withholding. All payments made pursuant to this Agreement will be subject to withholding of applicable taxes.

20. Governing Law. This Agreement will be governed by the laws of the State of Illinois (with the exception of its conflict of laws provisions), and all actions to enforce its terms will be venued exclusively in Cook County, Illinois.

[remainder of page intentionally left blank]

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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.


PCTEL, INC.

/s/ RICHARD C. ALBERDING		Date: September 5, 2007

By:	Richard C. Alberding
Title:	Chair, Compensation Committee of the Board of Directors

EXECUTIVE

/s/ MARTIN H. SINGER		Date: September 5, 2007

Martin H. Singer

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EX-10.62 3 c18505exv10w62.htm MANAGEMENT RETENTION AGREEMENT exv10w62

Exhibit 10.62

Martin H. Singer Management Retention Agreement

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PCTEL, INC.

MARTIN H. SINGER MANAGEMENT RETENTION AGREEMENT

(amended and restated on September 5, 2007)

This Management Retention Agreement, as amended and restated on September 5, 2007 (the “Agreement”), is made and entered into by and between Martin H. Singer (“Executive”) and PCTEL, Inc. (the “Company”).

RECITALS

A. It is expected that the Company from time to time may consider a Change of Control (as defined below). The Board of Directors of the Company (the “Board”) recognizes that such consideration can be a distraction to Executive and can cause Executive to consider alternative employment opportunities. The Board has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication and objectivity of Executive, notwithstanding the possibility, threat or occurrence of a Change of Control of the Company.

B. The Board believes that it is in the best interests of the Company and its stockholders to provide Executive with an incentive to continue his employment and to motivate Executive to maximize the value of the Company upon a Change of Control for the benefit of its stockholders.

C. The Board believes that it is imperative to provide Executive with certain benefits upon a Change of Control and severance benefits upon Executive’s termination of employment following a Change of Control which provide Executive with enhanced financial security and incentive and encouragement to remain with the Company notwithstanding the possibility of a Change of Control.

D. Certain capitalized terms used in this Agreement are defined in Section 4 below.

The parties hereto agree as follows:

1. Term of Agreement. This Agreement shall terminate upon the date that all obligations of the parties hereto with respect to this Agreement have been satisfied.

2. Employment Agreement. Executive and the Company have entered into an Employment Agreement dated as of August ___, 2007. If Executive’s employment terminates for any reason, including (without limitation) any termination prior to a Change of Control, Executive shall be entitled to such payments, benefits, damages, awards and compensation as provided by this Agreement and the Employment Agreement.

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3. Change of Control Severance Benefits.

(a) Change of Control. Upon the occurrence of a Change of Control, the unvested portion of all Executive’s outstanding equity awards (including, but not limited to, stock options and restricted stock grants) with a performance-based vesting schedule shall be automatically amended to convert such equity awards to a time-based vesting schedule (the “Converted Awards”). Each Converted Award shall vest as to one forty-eighth (1/48^th) of the shares subject to the award each month, subject to Executive’s continued service with the Company through each such date. Executive shall be given vesting credit from the original date of grant as if each Converted Award had been subject to a time-based vesting schedule from its grant date. For purposes of this Section 3(a), the number of shares subject to the Converted Award shall be the amount of the award that is targeted for achievement during the total performance period (whether measured in one or more fiscal periods) in which the Change of Control occurs, regardless of any actual level of achievement subsequently determined. Converted Awards shall be subject to the provisions of Section 3(b)(iv) of this Agreement. In the event of a conflict between the terms and conditions of the Company’s 1997 Stock Plan (the “Option Plan”), the agreements relating to Executive’s equity awards, and this Section 3(a), the terms and conditions of this Section 3(a) shall prevail and any subsequent documents that purport to modify this Agreement shall be without effect unless they specifically refer to this Agreement.

(b) Involuntary Termination other than for Cause, Death or Disability or Voluntary Termination for Good Reason Following a Change of Control. If, within twelve (12) months following a Change of Control, Executive’s employment is terminated (i) involuntarily by the Company other than for Cause, death or Disability or (ii) by Executive pursuant to a Voluntary Termination for Good Reason, then, subject to Executive entering into a standard form of mutual release or claims with the Company, the Company shall provide Executive with the following benefits upon such termination:

(i) Severance Payment. Executive shall be entitled to receive a lump-sum cash payment in an amount equal to two hundred percent (200%) of Executive’s Annual Compensation. Such severance payment will be made within ten (10) days of the date of Executive’s termination of employment, unless Section 7 of this Agreement requires otherwise.

(ii) Continued Executive Benefits. The Company will reimburse Executive for the cost of Executive’s health, dental, vision, long-term disability and life insurance coverage at the same level of coverage as was provided to Executive immediately prior to the Change of Control and at the same ratio of Company premium payment to Executive premium payment as was in effect immediately prior to the Change of Control (the “Company-Paid Coverage”). If such coverage included Executive’s dependents immediately prior to the Change of Control, such dependents shall also be covered at Company expense. Company-Paid Coverage shall continue until the earlier of (A) one (1) year from the date of termination, or (B) the date upon which Executive and his dependents become covered under another employer’s group health, dental, vision, long-term disability and life insurance plans that provide Executive and his dependents with comparable benefits and levels of coverage. For purposes of Title X of the Consolidated Budget Reconciliation Act of 1985 (“COBRA”), the date of the “qualifying event” for Executive and his or her dependents shall be the date upon which the Company-Paid Coverage commences, and each

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month of Company-Paid Coverage provided hereunder shall offset a month of continuation coverage otherwise due under COBRA.

(iii) Pro-Rated Bonus Payment. Executive shall be entitled to receive a lump-sum cash payment equal to one hundred percent (100%) of the higher of (A) Executive’s Target Bonus as in effect for the fiscal year in which the Change of Control occurs or (B) Executive’s Target Bonus as in effect for the fiscal year in which Executive’s termination occurs; such amount to be pro-rated by multiplying such bonus amount in clause (A) or (B), as applicable, by a fraction, the numerator of which shall be the number of days prior to Executive’s termination during such fiscal year, and the denominator of which shall be three-hundred and sixty-five (365). Such severance payment will be made within ten (10) days of the date of Executive’s termination of employment, unless Section 7 of this Agreement requires otherwise.

(iv) Equity Compensation Accelerated Vesting. One hundred percent (100%) of Executive’s outstanding equity awards (including, but not limited to, stock options and restricted stock grants) with a time-based vesting schedule (including the Converted Awards) shall immediately accelerate and become fully vested.

(c) Voluntary Resignation. If Executive’s employment terminates by reason of Executive’s voluntary resignation (other than a Voluntary Termination for Good Reason), then Executive shall not be entitled to receive severance or other benefits except for those (if any) as may then be established under the Company’s then existing severance and benefits plans or pursuant to other written agreements with the Company.

(d) Disability; Death. If Executive’s employment with the Company terminates as a result of Executive’s Disability, or if Executive’s employment is terminated due to the death of Executive, then Executive shall not be entitled to receive severance or other benefits except for those (if any) as may then be established under the Company’s then existing severance and benefits plans or pursuant to other written agreements with the Company.

(e) Termination for Cause. If Executive is terminated for Cause, then Executive shall not be entitled to receive severance or other benefits.

(f) Termination Apart from Change of Control. In the event Executive’s employment is terminated for any reason, either prior to the occurrence of a Change of Control or after the twelve (12) month period following a Change of Control, then Executive shall be entitled to receive severance and any other benefits only as may then be established under the Employment Agreement and the Company’s then existing severance and benefits plans or pursuant to other written agreements with the Company.

4. Definition of Terms. The following terms referred to in this Agreement shall have the following meanings:

(a) Annual Compensation. “Annual Compensation” shall mean an amount equal to Executive’s annual base salary payable by the Company.

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(b) Target Bonus. “Target Bonus” shall mean Executive’s annual bonus under the Company’s short term incentive plan for the officers and key managers of the Company, assuming one hundred percent (100%) “on target” satisfaction of any performance milestones.

(i) An act of personal dishonesty taken by Executive in connection with his responsibilities as an employee and intended to result in substantial personal enrichment of Executive;

(ii) Executive being convicted of, or a plea of nolo contendere to, a felony;

(iii) A willful act by Executive which constitutes gross misconduct and which is injurious to the Company; or

(d) Change of Control. “Change of Control” means the occurrence of any of the following events:

(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company’s then outstanding voting securities who is not already such as of the Effective Date of this Agreement; or

(ii) The consummation of the sale or disposition by the Company of all or substantially all the Company’s assets (for these purposes, a substantial sale or disposition will in no event be considered to occur unless at least forty percent (40%) of the total gross fair market value of all of the assets of the Company are sold or disposed of); or

(iii) The consummation of a merger or consolidation of the Company with any other corporation, 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 or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation.

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(e) Disability. “Disability” shall mean that:

(ii) Executive is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for at least three (3) months under the Company’s accident and health plan; or

(iii) Executive is determined to be totally disabled by the Social Security Administration

(f) Voluntary Termination for Good Reason. “Voluntary Termination for Good Reason” shall mean Executive voluntarily resigns after the occurrence of any of the following without Executive’s express written consent:

(i) Any material reduction of Executive’s duties, authority or responsibilities (including any change in title that would compromise Executive’s direct reporting responsibility to the board of directors of the surviving or acquiring company), relative to Executive’s duties, authority or responsibilities as in effect immediately prior to such reduction, or the assignment to Executive of such reduced duties, authority or responsibilities;

(ii) A material reduction, without good business reasons, of the facilities and perquisites (including office space and location) available to Executive immediately prior to such reduction;

(iii) A material reduction by the Company in the annual base salary of Executive as in effect immediately prior to such reduction;

(v) The failure of the Company to obtain the assumption of this Agreement by any successors contemplated in Section 8(a) below; or

(vi) Any act or set of facts or circumstances which would, under Illinois case law or statute, constitute a constructive termination of Executive.

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thirty (30) days following delivery of such notice to cure the Voluntary Termination for Good Reason condition.

5. 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 twenty-four (24) months following the termination of Executive’s employment (the “Restricted Period”) with the Company for any reason (whether during the Employment Term or subsequent to the end of such period), 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 payments and benefits set forth in Section 3 (to the extent Executive is otherwise entitled to such payments and benefits) 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 interest in or participating in the financing, operation, management or control of, any person, firm, corporation or business that competes in the markets for the Restricted Business; provided, however, that nothing in this Section 5(a) shall prevent Executive from owning as a passive investment less than one percent (1%) of the outstanding shares of the capital stock of a publicly-held company if (A) such shares are actively traded on the New York Stock Exchange or the Nasdaq Global Market and (B) Executive is not otherwise associated with such company or any of its affiliates. The “Restricted Business” for purposes of this Agreement is one which is engaged in the design, development, manufacture, production, marketing, sale, licensing or servicing of any products, or the provision of any services, that are the same as or similar to those of the Company during the Restricted Period. Upon any breach of this section, all severance payments and benefits pursuant to this Agreement shall immediately cease.

(b) Non-Solicitation. During the twenty-four (24) months following the termination of Executive’s employment with the Company for any reason (whether during or after the Employment Term), Executive agrees and acknowledges that Executive’s right to receive the payments and benefits set forth in Section 3 (to the extent Executive is otherwise entitled to such payments and benefits) 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.

(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 his obligations hereunder, including, without limitation, the reasonableness of the length of time, scope and geographic coverage of these covenants.

6. Section 280G. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax

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imposed by Section 4999 of the Code, then Executive’s severance benefits under this Agreement shall be payable either

(i) in full, or

(ii) as to such lesser amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall be made in writing, by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

7. Section 409A.

(a) Distributions. Notwithstanding anything to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A of the Code and the final regulations and any other guidance promulgated thereunder (“Section 409A”) at the time of his termination, and the severance payable to Executive, if any, pursuant to this Agreement, when considered together with any other severance payments or separation benefits which may be considered deferred compensation under Section 409A (together, the “Deferred Compensation Separation Benefits”) will not and could not under any circumstances, regardless of when such termination occurs, be paid in full by the fifteenth day of the third month of the Company’s fiscal year following Executive’s termination, then only that portion of the Deferred Compensation Separation Benefits which do not exceed the Section 409A Limit (as defined below) may be made within the first six (6) months following Executive’s termination of employment in accordance with the payment schedule applicable to each such payment or benefit. For these purposes, each severance payment is hereby designated as a separate payment and will not collectively be treated as a single payment. Any portion of the Deferred Compensation Separation Benefits in excess of the Section 409A Limit shall accrue and, to the extent such portion of the Deferred Compensation Separation Benefits would otherwise have been payable within the first six (6) months following Executive’s termination of employment, will 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 Executive’s termination of employment. All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit.

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(b) Amendment. This provision is intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Executive 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 Executive under Section 409A.

8. Successors.

(a) Company’s Successor. Any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets shall assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any such successor to the Company which executes and delivers the assumption agreement described in this Section 8(a) or which becomes bound by the terms of this Agreement by operation of law.

(b) Executive’s Successors. The terms of this Agreement and all rights of Executive hereunder shall inure to the benefit of, and be enforceable by, Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.

9. Notice.

(a) General. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or one day following mailing via Federal Express or similar overnight courier service. In the case of Executive, mailed notices shall be addressed to him at the home address which he most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary.

(b) Notice of Termination. Any termination by the Company for Cause shall be communicated by a notice of termination to Executive given in accordance with Section 9(a) of this Agreement. Such notice shall indicate the specific termination provision in this Agreement relied upon, shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination under the provision so indicated, and shall specify the termination date (which shall be

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not more than 30 days after the giving of such notice). A termination by Executive pursuant to a Voluntary Termination for Good Reason shall be communicated by a notice of termination to the Company in accordance with Section 4(f) and Section 9(a) of this Agreement.

10. Miscellaneous Provisions.

(a) No Duty to Mitigate. Executive shall not be required to mitigate the value of any benefits contemplated by this Agreement, nor shall any such benefits be reduced by any earnings or benefits that Executive may receive from any other source.

(b) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by two authorized officers of the Company (other than Executive). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.

(c) Integration. This Agreement, together with the Employment Agreement, the Option Plan, the agreements relating to Executive’s equity awards, the Company’s Deferred Compensation Plans (as defined in Executive’s Employment 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. 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 (except that the Option Plan and the Deferred Compensation Plans may be revised or modified in accordance with their terms) and any subsequent documents that purport to modify this Agreement shall be without effect unless they specifically refer to this Agreement.

(d) Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws or the State of Illinois.

(e) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.

(f) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.

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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the day and year set forth below.

PCTEL, INC.


By:	/s/ RICHARD C. ALBERDING	Date: September 5, 2007


Name:	Richard C. Alberding

Title:	Chair of the Compensation Committee of the Board of Directors

EXECUTIVE:

/s/ MARTIN H. SINGER		Date: September 5, 2007

Martin H. Singer

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EX-10.63 4 c18505exv10w63.htm FORM OF PERFORMANCE SHARE AGREEMENT exv10w63

Exhibit 10.63

Form of Performance Share Agreement

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PCTEL, INC.

1997 STOCK PLAN

PERFORMANCE SHARE AGREEMENT

This Performance Share Agreement (the “Agreement”), dated August ___, 2007, is effective as of March 16, 2007 (the “Date of Grant”), between PCTEL, INC. (hereinafter called the “Company”) and (hereinafter called the “Participant”). This Agreement is intended to memorialize the authorization by the Company’s board of directors made on the Date of Grant of the incentive provided for herein. Unless otherwise defined herein, the terms defined in the amended and restated 1997 Stock Plan (the “Plan”) will have the same defined meanings in this Agreement.

1. Award Grant. Subject to the terms and conditions set forth herein, the Company has awarded to Participant as of the Date of Grant a target number of Performance Shares under the Plan. The performance goals for the stock grant consist of (i) targeted annual revenue growth of the Company and (ii) targeted annual pro forma net income growth of the Company, subject to these and other explanatory terms and conditions as have been adopted and approved by the Board of Directors on the Date of Grant and communicated in writing to Participant (the “Performance Share Award Program”). The performance period for achieving these goals is the four-year fiscal period beginning January 1, 2007 and ending December 31, 2010 (the “Performance Period”), with performance determinations upon the completion of each year within the Performance Period, and for the entire four years within the Performance Period, in accordance with the Performance Share Award Program. Depending on the level of achievement, the actual number of Performance Shares to be awarded may be increased or decreased from the targeted amount. The maximum number of Performance Shares that may be awarded to Participant based on the overachievement of the performance goals is .

2. Obligation to Pay. Each Performance Share represents the right to receive one share to the extent it is earned in accordance with the Performance Share Award Program. Unless and until the Performance Shares are earned in the manner set forth in the Performance Share Award Program, Participant will have no right to payment of such Performance Shares. Prior to actual payment of any earned Performance Shares, such Performance Shares will represent an unsecured obligation.

Notwithstanding the foregoing provisions of this Section 2, in the event the Company (or the Subsidiary employing Participant) terminates Participant as a Service Provider without “Cause” or Participant voluntarily resigns for “Good Reason”, or Participant ceases to be a Service Provider as the result of Participant’s death or “Disability”, the Performance Shares shall vest in accordance with the terms of Participant’s Employment Agreement with the Company. The definitions used in this paragraph shall have the meanings given them in such agreement, as may be modified from time to time.

In addition, notwithstanding the foregoing provisions of this Section 2, in the event of a Change in Control that occurs during the Performance Period while Participant is a Service Provider, the Performance Shares will vest in accordance with the terms of Participant’s Management Retention Agreement with the Company.

Subject to the foregoing acceleration provisions and any such provisions set forth in the Plan, in the event Participant ceases to be a Service Provider for any or no reason before Participant earns and vests the Performance Shares pursuant to this Agreement, the award of Performance Shares and Participant’s right to acquire any Performance Shares hereunder will immediately terminate.

3. Administrator Discretion. The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the Performance Shares at any time, subject to the terms of the Plan. If so accelerated, such Performance Shares will be considered as having vested as of the date specified by the Administrator. If the Administrator, in its discretion, accelerates the vesting of the balance, or some lesser portion of the balance, of the Performance Shares, the payment of such accelerated Performance Shares nevertheless shall be made at the same time or times as if such Performance Shares had vested in accordance with the vesting schedule set forth in Section 1 herein and the Performance Share Award Program (whether or not Participant remains employed by the

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Company or by one of its Subsidiaries as of such date(s)), unless an earlier payment date, in the judgment of the Administrator, would not cause Participant to incur an additional tax under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the final regulations and any other guidance promulgated thereunder (“Section 409A”).

4. Payment after Earning. Any Performance Shares that are earned or are deemed earned in accordance with the Performance Share Award Program will be paid to Participant (or in the event of Participant’s death, to his or her estate) in whole Performance Shares, subject to Participant satisfying any applicable tax withholding obligations as set forth in Section 9. Participant will not be required to make any additional monetary payment (other than applicable tax withholding, if any) upon settlement of the award.

5. Payments after Death. Any distribution or delivery to be made to Participant under this Agreement will, if Participant is then deceased, be made to Participant’s designated beneficiary, or if no beneficiary survives Participant, the administrator or executor of Participant’s estate. Any such transferee must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.

6. Section 409A. Notwithstanding anything to the contrary in this Agreement, if Participant is a “specified employee” within the meaning of Section 409A at the time of his termination, and the Performance Shares payable to Participant, if any, pursuant to this Agreement, when considered together with any other severance payments or separation benefits which may be considered deferred compensation under Section 409A (together, the “Deferred Compensation Separation Benefits”) will not and could not under any circumstances, regardless of when such termination occurs, be paid in full by the fifteenth day of the third month of the Company’s fiscal year following Participant’s termination, then only that portion of the Deferred Compensation Separation Benefits which do not exceed the Section 409A Limit (as defined below) may be made within the first six (6) months following Participant’s termination of employment in accordance with the payment schedule applicable to each such payment or benefit. For these purposes, each severance payment is hereby designated as a separate payment and will not collectively be treated as a single payment. Any portion of the Deferred Compensation Separation Benefits in excess of the Section 409A Limit shall accrue and, to the extent such portion of the Deferred Compensation Separation Benefits would otherwise have been payable within the first six (6) months following Participant’s termination of employment, will 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 Participant’s termination of employment. All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit.

This provision is intended to comply with the requirements of Section 409A so that none of the Performance Shares to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Participant 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 Participant under Section 409A.

For purposes of this Agreement, “Section 409A Limit” shall mean the lesser of two (2) times: (i) Participant’s annualized compensation based upon the annual rate of pay paid to Participant during the Company’s taxable year preceding the Company’s taxable year of Participant’s 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 Participant’s employment is terminated.

7. Rights as Stockholder. Except as set forth in Section 5, neither Participant nor any person claiming under or through Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Performance Shares deliverable hereunder, unless and until certificates representing the Performance Shares will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Participant.

8. Effect on Employment. Participant acknowledges and agrees that the earning and vesting of Performance Shares pursuant to Section 2 hereof is accomplished only by the achievement of the goals and Participant’s

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continuing to be a Service Provider through the applicable Performance Period (and not through the act of being hired or acquiring Performance Shares hereunder). Participant further acknowledges and agrees that this Agreement, the transactions contemplated hereunder and the earning and vesting provisions set forth herein do not constitute an express or implied promise of Participant continuing to be a Service Provider for any period, or at all, and will not interfere with the Participant’s right or the right of the Company (or the Affiliate employing Participant) to terminate Participant as a Service Provider at any time, with or without cause.

9. Tax Withholding. Notwithstanding any contrary provision of this Agreement, no certificate representing Performance Shares will be issued to Participant, unless and until satisfactory arrangements (as determined by the Administrator) will have been made by Participant with respect to the payment of income, employment and other taxes which the Company determines must be withheld with respect to such Performance Shares so issuable. All income, employment and other taxes related to the Performance Share Award and any Performance Shares delivered in payment thereof are the sole responsibility of Participant. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit Participant to satisfy such tax withholding obligation, in whole or in part by one or more of the following (without limitation): (a) paying cash, (b) electing to have the Company withhold otherwise deliverable Performance Shares having a Fair Market Value equal to the amount required to be withheld, (c) delivering to the Company already vested and owned Performance Shares having a Fair Market Value equal to the amount required to be withheld, or (d) selling a sufficient number of such Performance Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to the amount required to be withheld. If Participant fails to make satisfactory arrangements for the payment of any required tax withholding obligations hereunder at the time any applicable Performance Shares otherwise are scheduled to vest pursuant to Section 2, Participant will permanently forfeit such Performance Shares and the Performance Shares will be returned to the Company at no cost to the Company.

10. Additional Conditions to Issuance of Stock. If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Performance Shares upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of Performance Shares to Participant (or his estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company. Where the Company determines that the delivery of the payment of any Performance Shares will violate federal securities laws or other applicable laws, the Company will defer delivery until the earliest date at which the Company reasonably anticipates that the delivery of Performance Shares will no longer cause such violation. The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority.

11. Restrictions on Sale of Securities. Subject to Section 10, the Performance Shares awarded under this Agreement will be registered under the federal securities laws and will be freely tradable upon receipt. However, Participant’s subsequent sale of the Performance Shares will be subject to any market blackout-period that may be imposed by the Company and must comply with the Company’s insider trading policies, and any other applicable securities laws.

12. Successors. Subject to the limitation on the transferability of this grant contained herein, this Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

13. Address for Notices. Any notice to be given to the Company under the terms of this Agreement will be addressed to the Company, in care of its General Counsel at PCTEL, Inc., 8725 West Higgins Road Suite 400, Chicago, IL 60631, or at such other address as the Company may hereafter designate in writing.

14. Transferability. Except to the limited extent provided in Section 5, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or

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upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.

15. Plan Governs. This Agreement is subject to all terms and provisions of the Plan. In the event of a conflict between one or more provisions of this Agreement and one or more provisions of the Plan, the provisions of the Plan will govern, unless otherwise provided in Participant’s Employment Agreement or Management Retention Agreement.

16. Administrator Authority. The Administrator will have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Performance Shares have been earned and vested). All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons. No member of the Administrator will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Agreement.

17. Electronic Delivery. The Company may, in its sole discretion, decide to deliver any documents related to Performance Shares awarded under the Plan or future Performance Shares that may be awarded under the Plan by electronic means or request Participant’s consent to participate in the Plan by electronic means. Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

18. Captions. Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.

19. Agreement Severable. In the event that any provision in this Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Agreement.

20. Entire Agreement. This Agreement constitutes the entire understanding of the parties on the subjects covered. The Participant expressly warrants that he or she is not executing this Agreement in reliance on any promises, representations, or inducements other than those contained herein.

21. Modifications to the Agreement. This Agreement constitutes the entire understanding of the parties on the subjects covered. The Participant expressly warrants that he or she is not accepting this Agreement in reliance on any promises, representations, or inducements other than those contained herein. Modifications to this Agreement can be made only in an express written contract executed by a duly authorized officer of the Company.

22. Amendment, Suspension or Termination of the Plan. By accepting this award, the Participant expressly warrants that he or she has received a right to purchase stock under the Plan, and has received, read and understood a description of the Plan. The Participant understands that the Plan is discretionary in nature and may be modified, suspended or terminated by the Company at any time.

23. Governing Law. This Agreement shall be governed by the laws of the State of Illinois, without giving effect to the conflict of law principles thereof. For purposes of litigating any dispute that arises under this award of Performance Shares or this Agreement, the parties hereby submit to and consent to the jurisdiction of the State of Illinois, and agree that such litigation shall be conducted in the courts of Cook County, Illinois, or the federal courts for the United States located in or around Cook County, Illinois, and no other courts, where this award of Performance Shares is made and/or to be performed.

IN WITNESS WHEREOF, the parties have signed this Agreement effective as of the date and year indicated above.

-31-


		PCTEL, INC.

		By:
			Chief Financial Officer

ACCEPTED

	Participant

PRINT NAME:

DATE:

-32-

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