EXHIBIT 10.22
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, dated as of February 23, 1999, is made and entered
into among AML Communications, Inc., a Delaware corporation (the "Company"),
Xxxxx X. XxXxxx, an individual (the "Executive").
R E C I T A L S
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WHEREAS, it is the desire of the Company to assure itself of the
management services of the Executive by directly engaging the Executive as the
Director of Programs of the Company.
WHEREAS, the Executive desires to accept such engagement by the
Company on the terms herein provided.
NOW THEREFORE, in consideration of the respective covenants and
agreements set forth below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
A G R E E M E N T
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1. Employment
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(a) The Company shall employ the Executive and the Executive shall
enter the employ of the Company, for the period set forth in this Section 1
unless sooner terminated in accordance with the provisions of this Agreement, in
the positions (or comparable positions) set forth in Section 2 and upon the
other terms and conditions herein provided. The initial term of employment under
this Agreement (the "Initial Term") shall be for the period beginning on the
date of this Agreement and ending on February 23, 2001, unless earlier
terminated as provided in Section 6.
(b) At the expiration of the Initial Term and each anniversary
thereafter, the terms of this Agreement shall automatically be terminated. The
agreement may be extended for an additional year (the "Extension Term") by
mutual agreement between the Company and the Executive transacted through
written notice given to the Executive at any time prior to or on the anniversary
date. If the Executive's employment term under this Agreement is extended for an
Extension Term, it shall thereafter or during any Extension Term be terminable
(other than upon expiration) only as provided in this Section or Section 6.
Reference herein to the "Term of Employment" of this Agreement shall refer to
both such Initial Term and any Extension Term.
2. Position and Duties.
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(a) During the Initial Term of employment, the Executive shall serve
as the Director of Programs of the Company and shall have such duties,
functions, responsibilities and authority as are consistent with the Executive's
position as the Director of Programs for the Company.
(b) During the Initial Term of employment, the Executive shall be a
full-time employee of the Company and shall devote substantially all of his
business time and attention to the performance of his duties to the Company.
3. Competition.
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(a) At any time during employment of the Executive by the Company,
and for one year following the Term of Employment, the Executive shall be
prohibited from engaging in Competition (as defined in subsection 3(b) below)
with the Company; provided, however, that if the Executive is terminated by the
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Company without Cause (as defined in subsection 6(c) below) or if the Executive
terminates his employment for Good Reason (as defined in subsection 6(d) below),
the foregoing prohibition shall terminate on the date of such termination.
(b) The term "Competition" for purposes of this Agreement shall be
outlined in the attached "Consulting/Employment Agreement Relating to Inventions
and Confidential Information."
(c) The Executive covenants that the Company shall, in addition to
any other rights and remedies available under this Agreement, at law or
otherwise, be entitled to an injunction to be issued by any court of competent
jurisdiction enjoining and restraining the Executive from committing any
violation of subsection 3(a) above.
(d) Any provision of this Agreement which is deemed invalid, illegal
or unenforceable in any jurisdiction shall, as to that jurisdiction and subject
to this paragraph be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provisions of this Agreement
invalid, illegal, or unenforceable in any other jurisdiction. If any covenant
should be deemed invalid, illegal or unenforceable because its scope of
activity, geographic area or duration, or any combination thereof, is considered
excessive, such covenant shall be modified and reformed so that the scope of
activity, geographic area and duration of the covenant is reduced only to the
minimum extent necessary to render the modified covenant valid, legal and
enforceable.
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4. Place of Performance. In connection with his employment during the
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Term of Employment, the Executive shall be based at the Company's principal
executive offices located in Camarillo, California or at a Company designated
location within 15 miles of the Executive's current principle residence.
Notwithstanding the foregoing, Executive shall undertake normal business travel
on behalf of the Company.
5. Compensation and Related Matters.
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(a) Annual Base Salary. The Executive shall receive an aggregate base
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("Annual Base Salary") at a rate of $117,000 per annum during the Initial Term,
and thereafter at a rate to be negotiated between the Executive and the Chief
Executive Officer.
The Annual Base Salary shall be payable in accordance with the
Company's normal payment practices but in no event shall such salary be payable
less frequently than monthly in equal installments, subject to tax and other
withholding as required by applicable law.
(b) Bonus Compensation. The Executive shall be entitled, on an annual
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basis, to a cash bonus ("Bonus Compensation") in an amount to be determined by
the Compensation Committee of the Board of Directors based upon the Company
achieving certain targets of growth determined by the Compensation Committee of
the Board on an annual basis.
(c) Benefits. During the Term of Employment, the Executive shall be
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entitle to:
(i) receive, at the discretion of the Compensation
Committee of the Board, stock options under the Company's Stock Incentive Plan;
(ii) participate in the Company's 401(k) plan; and
(iii) participate in or receive benefits under any employee
benefit plan or other arrangement including, but not limited to, any medical,
dental, retirement, disability, life insurance, sick leave and vacation plans or
arrangements made available by the Company to any of its employees
(collectively, "Benefits"), subject to and on a basis consistent with the terms,
conditions and overall administration of such plans or arrangements.
(d) Expenses. The Company shall promptly pay directly or reimburse
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the Executive for all reasonable travel and other business expenses incurred by
the Executive in the performance of his duties to the Company, respectively,
under this Agreement, including without limitation, with respect to professional
memberships and
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continuing education. Through December 26, 1999, the Company shall provide the
Executive with an automobile comparable to the automobile currently provided to
the Executive, and shall continue to pay, or reimburse the Executive for, all
expenses related to the business use thereof (including insurance, gasoline and
maintenance).
(e) Vacation. The Executive shall be entitled to vacation benefits in
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accordance with the Company's normal vacation policies.
6. Termination. The Executive's employment hereunder may be terminated by
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the Company or the Executive, as applicable, under the following circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon
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his death. In the case of the Executive's death, the Company shall pay to the
Executive's beneficiaries or estate, as appropriate, (i) promptly after the
Executive's death, the unpaid Annual Base Salary to which he is entitled
pursuant to subsection 5(a) prorated through the date of his termination and
(ii) as soon as practicable after the close of the Company's fiscal year in
which the Executive's death occurs, a prorated portion of any unpaid Bonus
Compensation. This subsection 6(a) shall not limit the entitlement of the
Executive's estate or beneficiaries to any death or other benefits then
available to the Executive under any life insurance or other benefit plan or
policy which is maintained by the Company for the Executive's benefit.
(b) Disability.
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(i) If the Company determines in good faith, after
considering all relevant medical evidence, that the Executive has incurred a
Disability (as defined below) during the Term of Employment, such party may give
the Executive written notice of their intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive, provided that within 30 days after such receipt, the Executive shall
not have returned to full-time performance of his duties. The Executive shall
continue to receive his Annual Base Salary and Benefits until the date of
termination. In the case of the Executive's Disability, the Company shall pay to
the Executive, (a) promptly after the Executive's termination, the unpaid Annual
Base Salary to which he is entitled pursuant to subsection 5(a) prorated through
the Executive's termination and (b) as soon as practicable after the close of
the fiscal year in which the Executive's termination occurs, a prorated portion
of any unpaid Bonus Compensation. In addition, the Company shall pay the
Executive the severance benefits as set forth in Section 7. This subsection 6(b)
shall not limit the entitlement of the Executive to any disability or other
benefits then available to the Executive under any disability insurance or other
benefit plan or policy which is maintained by the Company for the Executive's
benefit.
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(ii) For the purpose of this Section, "Disability" shall mean
the Executive's failure to perform his duties to the Company on a full-time
basis for a total of 16 consecutive weeks during any 12-month period as a result
of incapacity due to mental or physical illness which is determined to be total
and permanent by a physician selected by the Company and acceptable to the
Executive or the Executive's legal representative (such agreement as to
acceptability not to be withheld, delayed or conditioned unreasonably).
(c) Cause.
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(i) The Company may terminate the Executive's employment
hereunder for Cause (as defined below). In the case of the Executive's
termination for Cause, the Company shall promptly pay to the Executive (or his
representative) the unpaid Annual Base Salary to which he is entitled pursuant
to subsection 5(a) prorated through the date the Executive is terminated and the
Executive shall be entitled to no other compensation.
(ii) For purposes of this Agreement, the Company shall have
"Cause" to terminate the Executive's employment hereunder upon a finding by the
Board that the Executive has (1) engaged in acts or omissions with respect to
the Company or any affiliate of the Company which constitute intentional
misconduct or a knowing violation of law as reasonably determined by the
disinterested members of the Board; (2) personally received a benefit in money,
property or services from the Company or any affiliate of the Company or from
another person dealing with the Company in violation of applicable law; (3)
breached his non-competition covenant with the Company; (4) breached his
fiduciary duty of loyalty to the Company or any affiliate of the Company; (5)
engaged in gross negligence in the performance of his duties to the Company or
any affiliate of the Company; or (6) frequently and repeatedly failed to perform
services for the Company or any affiliate of the Company which have been
reasonably requested of him by the Board and which are consistent with the terms
of this Agreement; provided, however, that "Cause" shall not exist unless and
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until the Company provides the Executive with (a) at least 15 days' prior
written notice of its intention to terminate his employment for Cause, with a
certified copy of the resolution of the Board approving the termination of the
Executive's employment for Cause by the affirmative vote of not less than a
majority of the Board (other than the Executive) and a written statement
describing the nature of the Cause and (b) a reasonable opportunity and a
reasonable period of time to cure any curable acts or omissions on which the
finding of Cause is based. If the Executive cures the acts or omissions on which
the finding of Cause is based, the Company shall not have Cause to terminate the
Executive's employment hereunder.
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(d) Good Reason.
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(i) The Executive may terminate his employment for Good Reason
(as defined below). In the event that the Executive so terminates his employment
for Good Reason, the Company shall pay to the Executive (a) promptly after the
Executive's termination, the unpaid Annual Base Salary to which he is entitled
pursuant to subsection 5(a) prorated through the Executive's termination and (b)
as soon as practicable after the close of the Company's fiscal year in which the
Executive's termination occurs, a prorated portion of any unpaid Bonus
Compensation. In addition, the Company shall pay the Executive severance
benefits as set forth in Section 7.
(ii) For purposes of this Agreement, the Executive shall have
"Good Reason" to terminate his employment with the Company in the event of (a)
any reduction in the Executive's compensation (including Annual Base Salary,
Bonus Compensation and Benefits, but excluding any termination or amendment of
Benefits pursuant to a termination or amendment generally of the plan or
arrangements relating thereto and excluding discretionary bonuses or similar
discretionary payments) without the Executive's consent; (b) any material breach
by the Company of, or default by it under, the provisions of the Agreement;
provided, however, that in the case of any breach or default, the Executive
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shall not have Good Reason to terminate his employment unless and until he has
provided the Company with written notice of such breach at least 15 days in
advance of his intended termination date and a reasonable opportunity and period
of time to cure such breach or default (provided, further, however, if the
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Company cures such breach, the Executive shall not have Good Reason to terminate
this Agreement); (c) any substantial diminution of duties, responsibilities or
status, or other imposition by the Company of unreasonable requirements or
working conditions on the Executive which are not withdrawn or corrected in all
material respects within a 30-day period following notice by the Executive to
the Company of such diminution or imposition or, if any of the foregoing arose
because of conditions or circumstances outside of the control of the Company,
such longer period as may be reasonably required under the circumstances.
(e) Without Cause. The Company may terminate the Executive's
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employment hereunder without Cause upon 30 days' written notice. In the event
the Company terminates the Executive's employment without Cause at any time
during the Initial Term, the Company shall pay to the Executive (i) promptly
after the Executive's termination, the unpaid Annual Base Salary to which he is
entitled pursuant to subsection 5(a) at the rate effective upon the date of
termination and (ii) as soon as practicable after the close of the fiscal year
in which the Executive's termination occurs, a prorated portion of any unpaid
Bonus Compensation. In addition, the Company shall pay the Executive severance
benefits as set forth in Section 7.
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(f) Resignation without Good Reason. The Executive may resign his
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employment without Good Reason upon 30 days' written notice to the Company. In
the case of the Executive's resignation without Good Reason, the Company shall
promptly pay to the Executive (or his representative) the unpaid Annual Base
Salary to which he is entitled pursuant to subsection 5(a) prorated through the
date the Executive is terminated. The Executive shall be entitled to no other
compensation.
(g) Mutual Agreement. The Executive's employment may be terminated by
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mutual agreement of the Executive and the Company at any time.
(h) Expiration. If either the Company or the Executive elects to
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terminate this Agreement pursuant to subsection 1(b) above, the Executive shall
only be entitled to his unpaid Annual Base Salary and Bonus Compensation, in
each case through the date of termination.
7. Severance Benefits.
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(a) Termination. If the Executive's employment shall be terminated by
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the Company pursuant to Section 6(b), (d), or (e) within the first twelve months
of the Initial Term, the Executive shall receive severance compensation which
shall consist of bi-weekly payments in an amount equal to the Annual Base Salary
effective upon the date of Termination, prorated bi-weekly, through August 23,
2000, except in the event this Agreement has theretofore been terminated by the
Company or the Executive pursuant to subsection 1(b) above. If the Executive's
employment shall be terminated by the Company pursuant to Section 6(b), (d), or
(e) within the second twelve months of the Initial Term, the Executive shall
receive severance compensation which shall consist of bi-weekly payments in an
amount equal to the Annual Base Salary effective upon the date of Termination,
prorated bi-weekly, for a period of six months from the date of Termination. In
addition, all theretofore unvested stock options, restricted stock and other
awards issued pursuant to the Stock Incentive Plan shall immediately vest and
the Company shall continue to provide the Executive and his dependents with
medical benefits for the duration of the Initial Term. Without limiting the
provisions of Sections 6(a) and 6(b), the Company shall have the right at no
cost or expense to the Executive to obtain additional insurance for the specific
purpose of paying all or any portion of the severance compensation to the
Executive as required by this Section 7(a).
(b) Survival. The expiration or termination of the Term of Employment
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shall not impair the rights or obligations of any party hereto, which shall have
accrued hereunder prior to such expiration.
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(c) Mitigation of Damages. In the event of any termination of the
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Executive's employment, the Executive shall not be required to seek other
employment to mitigate damages, and any income earned by the Executive from
other employment or self-employment shall not be offset against any obligations
of the Company to the Executive under this Agreement.
8. Confidential Information.
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The Executive agrees not to disclose to any person not employed by the
Company or any affiliated entity and not engaged to render services to the
Company or any affiliated entity any confidential information obtained while in
the employ of the Company; provided, however, that the restrictions contained
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herein shall not apply to information that (i) was in the Executive's possession
prior to any disclosure to him by the Company, (ii) is or becomes generally
available to the public other than as a result of disclosure by the Executive or
his representatives in violation of this Agreement, (iii) is or becomes
available to the Executive on a non-confidential basis from a source (other than
the Company or its representatives) which is not, to the Executive's knowledge,
prohibited from transmitting the information to the public generally by a
contractual, legal, fiduciary or other obligation, (iv) was independently
acquired or developed by the Executive outside the scope of his employment
hereunder or by any predecessor of the Company or any affiliated entity without
violating the Executive's obligations under this Agreement and without any
obligation of the Executive to hold for the benefit of or contribute to the
Company, or (v) is knowingly furnished to a third party by the Company or any
representative of the Company without similar non-disclosure restrictions on the
third party's use of such information. In addition, this Section 8 shall not
preclude the Executive from the use or disclosure of information known generally
to the public or of information not considered confidential by the Company or
any affiliated entity or from making disclosures required by law or court order.
For purposes of this Agreement, the term "confidential information"
shall include all information of any nature and in any form which is owned by
the Company or any affiliated entity and which is not publicly available or
generally known to persons engaged in businesses similar to that of the Company
including, but not limited to, research techniques; patents and patent
applications; inventions and improvements, whether patentable or not;
development projects; computer software and related documentation and materials
(including source and use codes); designs, practices, processes, methods, know-
how and other facts relating to the business of the Company; practices,
processes, methods, know-how and other facts related to sales, advertising,
promotions, financial matters, customers, customer lists or customers' purchases
of goods or services from the Company; industry contracts; and all other secrets
and information of a confidential and proprietary nature.
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9. Disputes.
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(a) Except as provided in subsection 3(c), any dispute or controversy
arising under, out of, in connection with or in relation to this Agreement
shall, at the election and upon written demand of any party to this Agreement,
be finally determined and settled by arbitration in Los Angeles, California, in
accordance with the rules and procedures of the American Arbitration
Association, and judgment upon the award may be entered in any court having
jurisdiction thereof.
(b) If any legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of
this Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief that may be granted.
10. Binding on Successors. This Agreement shall be binding upon and inure
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to the benefit of the Company, the Executive and their respective successors,
assigns, personal and legal representatives, executors, administrators, heirs,
distributees, devisees, and legatees, as applicable.
11. Governing Law. This Agreement is being made and executed in and is
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intended to be performed in the State of California and shall be governed,
construed, interpreted and enforced in accordance with the substantive laws of
the State of California, without regard to the conflict of laws principles
thereof.
12. Validity. The invalidity or unenforceability of any provision or
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provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
13. Notices. Any notice, request, claim, demand, document and other
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communication hereunder to any party shall be effective upon receipt (or refusal
of receipt) and shall be in writing and delivered personally or sent by telex,
telecopy, or certified or registered mail, postage prepaid, as follows:
(a) If to the Company, addressed to its principal offices to the
attention of Chief Executive Officer at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000;
(b) If to the Executive, to him at the address set forth below under
his signature;
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or at any other address as any party shall have specified by notice in writing
to the other parties.
14. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed to be an original, but all of which together will
constitute one and the same Agreement.
15. Entire Agreement. The terms of this Agreement are intended by the
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parties to be the final expression of their agreement with respect to the
employment of the Executive by the Company and may not be contradicted by
evidence of any prior or contemporaneous agreement. The parties further intend
that this Agreement shall constitute the complete and exclusive statement of its
terms and that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative or other legal proceeding to vary the terms of this
Agreement.
16. Amendments: Waivers. This Agreement may not be modified, amended, or
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terminated except by an instrument in writing, approved by the Chief Executive
Officer and signed by the Executive and the Company. By an instrument in
writing similarly executed, the Executive or the Company may waive compliance by
the other party or parties with any provision of this Agreement that such other
party was or is obligated to comply with or perform; provided, however, that
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such waiver shall not operate as a waiver of, or estoppel with respect to, any
other or subsequent failure. No failure to exercise and no delay in exercising
any right, remedy or power hereunder shall preclude any other or further
exercise of any other right, remedy or power provided herein or by law or in
equity.
17. No Effect on Other Contractual Rights. Notwithstanding Section 7, the
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provisions of this Agreement, and any other payment provided for hereunder,
shall not reduce any amounts otherwise payable to the Executive under any other
agreement between the Executive and the Company, or in any way diminish the
Executive's rights under any other agreement with the Company or other officers
of the Company, or employee benefit plan, program or arrangement of the Company
to which he may be entitled as an employee of the Company.
18. No Inconsistent Actions. The parties hereto shall not voluntarily
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undertake or fail to undertake any action or course of action inconsistent with
the provisions or essential intent of this Agreement. Furthermore, it is the
intent of the parties hereto to act in a fair and reasonable manner with respect
to the interpretation and application of the provisions of this Agreement.
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19. Non-Renewal of This Agreement. In the event the Term of this
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Agreement is not extended or renewed for any or no reason upon the expiration of
the Initial Term or an Extended Term and this Agreement had not otherwise been
previously terminated pursuant to Section 6, the Executive shall not be entitled
to any severance compensation whatsoever under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
EXECUTIVE:
___________________________________
AML COMMUNICATIONS, INC.,
a Delaware corporation
By: _______________________________
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