EXHIBIT 10.5
TERMINATION AGREEMENT
THIS AGREEMENT, dated and effective as of the ______ day of
_________________, 2000, is made and entered into by and between IFR SYSTEMS,
INC., a Delaware corporation ("IFR"), and XXXXXX XXXXX ("Executive").
WHEREAS, Executive has made and is expected to make a major
contribution to the profitability, growth and financial strength of IFR; and
WHEREAS, IFR considers the continued services of Executive to be in
the best interests of IFR and its shareholders and desires to assure the
continued services of Executive on behalf of IFR on an objective and
impartial basis and without distraction or conflict of interest in the event
of an attempt to change control of IFR; and
WHEREAS, Executive is willing to remain in the employ of IFR upon
the understanding that IFR will provide him with income security upon the
terms and subject to the conditions reflected herein.
NOW THEREFORE, in consideration of the promises and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
SECTION 1. PAYMENT OF AMOUNTS TO EXECUTIVE. IFR will pay to
Executive the benefits described in Section 2 hereof in the event that: (a) a
Change of Control (as defined in Section 3 hereof) of IFR occurs; and (b)
Executive's employment with IFR is terminated within two years after the
Change of Control occurs either (i) by IFR for any reason other than Serious
Executive Misconduct (as defined in Section 4 hereof), death, normal
retirement, or permanent and total disability (defined as the inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period
of not less than 12 months), or (ii) by Executive for Good Reason (as defined
in Section 5 hereof).
SECTION 2. BENEFITS TO BE PAID TO EXECUTIVE. If required by the
terms of Section 1 of this Agreement, IFR will pay to Executive the following
benefits, in the time and manner described:
SECTION 2.01. SALARY AND BONUS. IFR will pay to Executive
within ten (10) days of the termination of his employment: (1) any amount of
salary and bonus or incentive compensation due; and (2) any portions thereof
earned or accrued but not yet due to Executive at the time of the termination
of his employment. In addition, with respect to any bonus or
1
incentive compensation based upon performance goals for a fiscal year or
other period of time which has not then expired, IFR shall, within sixty (60)
days following the expiration of such fiscal year or other period of time,
pay to Executive the pro rata portion of any such bonus or
2
incentive compensation applicable to the portion of such fiscal year or other
period of time prior to the termination of employment.
IFR will also pay to Executive as severance compensation in a
lump-sum payment within ten (10) days of the termination of his employment an
amount equal to 2.95 times Executive's Average Annual Compensation. For purposes
of this Agreement, the term "Average Annual Compensation" shall mean the average
of Executive's salary, bonuses, and incentive compensation (exclusive of
compensation under any stock option, stock appreciation right or other similar
equity based compensation arrangement maintained by IFR or any of its
subsidiaries or affiliates which was includible in the gross income of Executive
for federal income tax purposes) for the five (5) most recent taxable years (or
such shorter period as Executive has been employed) of Executive ending before
the date on which the Change of Control occurred. Average Annual Compensation
shall not include reimbursements or other expense allowances, fringe benefits
(cash and non-cash), moving expenses, and welfare benefits. Average Annual
Compensation shall, however, include Elective Contributions made by IFR on
Executive's behalf. "Elective Contributions" are amounts excludable from
Executive's gross income under Code Sections 125, 402(a)(8), 402(h), or any
nonqualified deferred compensation plan.
SECTION 2.02. RETIREMENT PLANS. For the purposes of any employee
pension plan maintained by IFR or any of its subsidiaries or affiliates in which
Executive is a participant, Executive shall be deemed to be fully vested as of
the date of the termination of his employment. IFR will pay to Executive within
ten (10) days of the immediately following plan valuation date the difference
between such deemed amount and Executive's actual account balance(s) in such
plan(s) (valued as of the immediately following plan valuation date). IFR will
also pay to Executive, at the same time and as an additional benefit under this
Agreement, an amount equal to fifty percent (50%) of any payment made under this
Section 2.02.
SECTION 2.03. DISABILITY AND MEDICAL INSURANCE BENEFITS. Until the
sooner of (1) the date which is three years after the termination of Executive's
employment, or (2) the date of death of Executive, IFR will maintain in full
force and effect all disability and medical insurance policy, plan or program
coverage benefits for Executive to which Executive was entitled immediately
prior to the termination of Executive's employment. If the terms of any
disability or medical insurance policy, plan or program maintained by IFR do not
permit the continued coverage of, and participation, by Executive, then IFR will
arrange to provide to Executive a benefit substantially similar to, and at least
as favorable as, the incremental benefit which Executive would have been
entitled to receive under any such IFR policy, plan or program had the coverage
and participation by Executive in such policy, plan or program continued from
the date of Executive's termination of employment until a date three years
thereafter. If the provision of the above benefits results in additional income
being imputed to Executive for purposes of income or other taxes, within ten
(10) days of Executive giving notice of the imputation of such income, IFR will
pay to Executive, as an additional benefit under this Agreement, an amount equal
to fifty percent (50%) of the amount of additional income being imputed to
Executive as a result of the benefits provided under this Section 2.03.
3
Executive shall also have the option, in lieu of the continuation
of benefits for the three year period described above, to have assigned to him
at no cost, and with no apportionment of prepaid premiums, any assignable
disability or medical insurance policy specifically relating to Executive which
is owned by IFR.
SECTION 2.04 LIFE INSURANCE. Notwithstanding the terms of any
other agreement to which IFR and Executive may be parties, Executive shall have
the option to have assigned to him, or to a trust established by him, in a
manner that will cause him not to incur any loss, cost or expense, and with no
apportionment of prepaid premiums, any assignable life insurance policy
specifically relating to Executive which is owned by IFR. For this purpose, the
phrase "loss, cost or expense" shall include, without limitation, indebtedness
to the insurer, IFR or any other party, federal or state income tax liability,
or any other indebtedness. If the assignment would, in the opinion of legal
counsel selected by Executive in the manner provided in the following sentence,
result in such a loss, cost or expense, IFR shall pay Executive, when it makes
the assignment, an amount of cash equal to the amount of any such loss, cost or
expense. In the event that Executive directs IFR to make such an assignment, IFR
shall not cause any such assignment to occur without having first received from
legal counsel selected by Executive an opinion that the manner of assignment
proposed by IFR satisfies the terms and conditions of this Section 2.04 and the
remainder of this Agreement. IFR shall pay all legal fees and expenses incurred
by Executive in securing such opinion.
SECTION 2.05. TAXES. In addition to the above payments and
benefits, within ten (10) days of the termination of Executive's employment, IFR
will pay to Executive, as an additional benefit under this Agreement, the amount
of any tax imposed on Executive by Section 4999 of the Internal Revenue Code of
1986, as amended, and any similar provision of any state tax code as a result of
receiving payments and benefits under this Agreement. Because such payment will
itself constitute compensation includible in Executive's gross income for income
tax purposes, IFR will also pay to Executive, as an additional benefit under
this Agreement, an amount equal to the incremental federal and state income
taxes incurred by Executive as a result of receiving any payments under this
Section 2.05 including the payment called for in this sentence. For purposes of
this section 2.05 it shall at all times be presumed that Executive is subject to
federal and state income taxes at the highest marginal rates then in effect,
including surcharge rates.
SECTION 3. DEFINITION OF CHANGE OF CONTROL. For purposes of this
Agreement, a "Change of Control" shall occur upon any Person (meaning any
individual, firm, corporation, partnership or other entity including any
successor of any such Person) together with all Affiliates and Associates
(having the respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934 (the
"Exchange Act")) of such Person becoming the beneficial Owner (as defined below)
of twenty percent (20%) or more of the Common Stock then outstanding; excluding
IFR, any subsidiary of IFR (meaning with reference to IFR, any corporation or
other entity of which a majority of the voting power of the voting securities or
equity interest is beneficially owned, directly or indirectly, by IFR, or
4
otherwise controlled by IFR), any employee benefit plan of IFR or of any
Subsidiary of IFR, or any Person or entity organized, appointed or
established by IFR for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, a Change of Control will not occur as the
result of an acquisition of shares of Common Stock by the Company which, by
reducing the number of shares outstanding, increases the proportionate number
of shares beneficially owned by a Person to twenty percent (20%) or more of
the shares of the Common Stock then outstanding; PROVIDED, HOWEVER, that if a
Person shall become the Beneficial Owner of twenty percent (20%) or more of
the shares of the Common Stock then outstanding by reason of share purchases
by IFR, and shall, after such share purchases by IFR, become the Beneficial
Owner of any additional shares of the Common Stock, then a Change in Control
shall be deemed to have occurred.
For purposes of this Agreement a Person shall be deemed the
"Beneficial Owner" of, and shall be deemed to "beneficially own" any
securities
(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether
such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding (other
than customary agreements with and between underwriters and selling
group members with respect to a bona fide public offering of
securities), whether or not in writing; or upon the exercise of
conversion rights, exchange rights, rights (other than these Rights),
warrants or options, or otherwise; PROVIDED, HOWEVER, that a Person
shall not be deemed the "Beneficial Owner" of, or to "beneficially own"
securities tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase or
exchange;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or dispose of
or has "beneficial ownership" of (as determined pursuant to Rule 13d-3
of the General Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not
in writing; PROVIDED, HOWEVER, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own" any security under this
subparagraph (ii) as a result of an agreement, arrangement or
understanding to vote such security if such agreement, arrangement or
understanding (A) arises solely from a revocable proxy or consent given
in response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable provisions of the General Rules
and Regulations under the Exchange Act, and (B) is not also then
reportable by such Person on Schedule 13D under the Exchange Act (or
any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate thereof) with which such
Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with
5
respect to a bona fide public offering of securities), whether or not
in writing, for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in the proviso to
subparagraph (ii) of this paragraph) or disposing of any voting
securities of IFR.
Notwithstanding anything in this definition of Beneficial Ownership to
the contrary, the phrase "then outstanding," when used with reference to a
Person's Beneficial Ownership of securities of the Company, shall mean the
number of such securities then issued and outstanding together with the number
of such securities not then actually issued and outstanding which such Person
would be deemed to own beneficially hereunder.
SECTION 4. DEFINITION OF SERIOUS EXECUTIVE MISCONDUCT. For purposes of
this Agreement, the term "Serious Executive Misconduct" shall mean an act or
acts by Executive which: (a) would constitute a felony under Delaware law; or
(b) were dishonest and which resulted in, or were intended by Executive to
directly or indirectly result in, the personal enrichment of Executive at IFR's
expense.
SECTION 5. DEFINITION OF GOOD REASON. For purposes of this Agreement,
Executive shall have "Good Reason" to terminate his employment with IFR if:
(a) Executive is assigned any duties or responsibilities which are
inconsistent with his position, duties, responsibilities or status
on the date of this Agreement, or his reporting responsibilities
or titles in effect on the date of this Agreement are changed;
(b) Executive's base compensation is reduced or he experiences in any
year a reduction in the ratio of his incentive and bonus
compensation to his base compensation in excess of the reduction
which would have occurred under the incentive and bonus formula in
effect immediately prior to the Change of Control;
(c) Executive is transferred to a principal work location which would
reasonably require a change in Executive's residence; or
(d) any provision of this Agreement is breached by IFR.
SECTION 6. TERM. The term of this Agreement (the "Term") shall begin on
the date of this Agreement and shall continue until December 31, 2000, and
thereafter, this Agreement shall be automatically renewed for successive
one-year terms unless terminated by either party giving the other written notice
of termination at least ninety (90) days prior to the expiration of such
original term or any such renewal term; PROVIDED, HOWEVER, THAT if a Change of
Control occurs on or before December 31, 2000 or on or before the expiration of
any renewal term, the Term of this Agreement shall continue at least until the
date which is three years after the
6
anniversary date of this Agreement which first follows the date on which a
Change of Control occurs.
SECTION 7. ENFORCEMENT OF AGREEMENT. IFR is aware that upon the
occurrence of a Change of Control the Board of Directors or a shareholder of IFR
may then cause, or attempt to cause, IFR to refuse to comply with its
obligations under this Agreement, or make, cause, or attempt to cause IFR to
institute, or may institute litigation seeking to have this Agreement declared
unenforceable, or may take or attempt to take, other action to deny Executive
the benefits intended under this Agreement. In these circumstances, the purpose
of this Agreement could be frustrated.
It is the intent of IFR that Executive not be required to incur the
expenses associated with the enforcement of his rights under this Agreement by
litigation or other legal action because the cost and expense thereof would
substantially detract from the benefits intended to be extended to Executive
hereunder. It is also the intent of IFR that Executive not be bound to negotiate
any settlement of his rights hereunder under threat of incurring such expenses.
Accordingly, if following a Change of Control, it should appear to
Executive that IFR has failed to comply with any of its obligations under this
Agreement, or in the event that IFR or any other person takes any action to
declare this Agreement void or unenforceable, or institutes any litigation or
other legal action designed to deny, diminish or to recover from Executive the
benefits entitled to be provided to Executive hereunder, and if Executive has
complied with all of his obligations under this Agreement, then: (a) IFR
irrevocably authorizes Executive from time to time to retain counsel of his
choice at the expense of IFR as provided in this Section 7 to represent
Executive in connection with the initiation or defense of any litigation or
other legal action whether by or against IFR or any director, officer,
shareholder, or other person affiliated with IFR, in any jurisdiction
notwithstanding any existing or prior attorney-client relationship between IFR
and such counsel; and (b) IFR irrevocably consents to Executive entering into an
attorney-client relationship with such counsel, and IFR and Executive agree that
a confidential relationship shall exist between Executive and such counsel.
The reasonable fees and expenses of counsel selected from time to time
by Executive as hereinabove provided, and all other costs and expenses
(including court costs) incurred by Executive as a result of any claim, action
or proceeding arising out of, or challenging the validity, admissibility or
enforceability of this Agreement or any provision hereof, shall be paid (or
reimbursed to Executive) by IFR on a regular basis upon presentation by
Executive of a statement or statements prepared by his counsel in accordance
with its customary practices, up to a maximum aggregate amount of $750,000.
SECTION 8. SEVERANCE PAY; NO DUTY TO MITIGATE. All amounts payable to
Executive under this Agreement shall not be treated as damages but as severance
compensation to which Executive is entitled by reason of the termination of his
employment in the circumstances contemplated by this Agreement. Executive shall
not be required to mitigate the amount of a
7
payment or benefit provided for in this Agreement by seeking other employment or
otherwise. IFR shall not be entitled to set off against the amounts payable to
Executive any amounts earned by Executive in other employment after termination
of his employment with IFR, or any amounts which might or could have been earned
by Executive in other employment had he sought such other employment.
SECTION 9. CONTINUED EMPLOYMENT OF EXECUTIVE AFTER POTENTIAL CHANGE OF
CONTROL. Subject to the provisions of this Agreement, Executive agrees to remain
in the employ of IFR for a period of at least one (1) year following the
occurrence of a Potential Change of Control. For purposes of this Agreement, a
"Potential Change of Control" shall be deemed to have occurred if: (a) IFR
enters into an agreement the consummation of which would result in the
occurrence of a Change of Control within the meaning of Section 3 of this
Agreement; (b) if any person, including IFR, publicly announces an intention to
take or to consider taking actions which if consummated would constitute a
Change of Control within the meaning of Section 3 of this Agreement; (c) if any
person becomes the beneficial owner, directly or indirectly, of securities
representing ten percent (10%) or more of the voting power of IFR's then
outstanding voting shares; or (d) the Board of Directors of IFR adopts a
resolution to the effect that, for purposes of this Agreement, a Potential
Change of Control has occurred.
SECTION 10. OTHER PROVISIONS.
SECTION 10.01. ASSIGNMENT. No right, benefit or interest hereunder
shall be subject to assignment, anticipation, alienation, sale, encumbrance,
charge, pledge, hypothecation or set off in respect of any claim, debt or
obligation, or to execution, attachment, levy or similar process; provided,
however, that Executive may assign any right, benefit or interest hereunder if
such assignment is permitted under the terms of any plan or policy of insurance
or annuity contract governing such right, benefit or interest.
SECTION 10.02. MODIFICATION. This Agreement may not be amended,
modified, supplemented or cancelled except by written agreement of the parties.
SECTION 10.03. WAIVER. No provision of this Agreement may be
waived except by a writing signed by the party to be bound thereby.
SECTION 10.04. SEVERABILITY. In the event that any provision or
portion of this Agreement shall be determined to be invalid or unenforceable for
any reason, the remaining provisions of this Agreement shall remain in full
force and effect to the fullest extent permitted by law.
SECTION 10.05. BINDING ON SUCCESSORS AND ASSIGNS. This Agreement
shall be binding upon and inure to the benefit of Executive (and his personal
representatives, heirs and assigns). This Agreement shall also be binding upon
and inure to the benefit of IFR and any successor organization or organizations
which shall succeed to substantially all of the business and
8
property of IFR, whether by means of merger, consolidation, acquisition of
substantially all of the assets of IFR or otherwise, including by operation of
law.
SECTION 10.06. NOTICES. Except as specifically set forth in this
Agreement, all notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if delivered in person or sent by
registered or certified mail, postage prepaid, addressed as set forth below, or
to such other address as shall be furnished in writing by the party which is the
addressee to the other party:
If to IFR: IFR Systems, Inc.
00000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
If to Executive: Xxxxxx X. Xxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
SECTION 10.07. ENTIRE AGREEMENT. This Agreement sets forth the
entire agreement and understanding of the parties hereto with respect to the
matters covered hereby. All representations, promises and prior or
contemporaneous understandings between the parties are merged into and expressed
in this Agreement.
SECTION 10.08. GOVERNING LAW. This Agreement has been made
pursuant to, and shall be governed and construed in accordance with the laws of
the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
IFR SYSTEMS, INC.
By______________________________________
Xxxxxxx X. Xxxxxxx, President & Chief Executive Officer
EXECUTIVE
-------------------------------------------
XXXXXX X. XXXXX
9
