AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.15
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made as of the 28th day of August, 2013 (the “Effective Date”) by and between Aeroflex Incorporated, a Delaware corporation, with its principal office located at 00 Xxxxx Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000 (together with its successors and assigns permitted hereunder, “Aeroflex”), and Xxxxxxx Xxxxx, who resides at 0000 Xxxx Xxxxx Xxx, Xxxxxx Xxxxx, Xxxxxxx 00000 (hereinafter “Xxxxx” and together with Aeroflex, the “Parties”).
WHEREAS, the Parties entered into an Employment Agreement made and entered into as of August 15, 2007, as amended on December 31, 2008 and on November 2010 (the “Prior Agreement”) under which the Parties agreed upon the terms pursuant to which Xxxxx would be employed by Aeroflex as further described therein, and
WHEREAS, the Parties desire to amend and restate the Prior Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt of which is mutually acknowledged, the Parties agree as follows:
| 1. | DEFINITIONS. |
(a) “Beneficiary” shall mean the person or persons named by Xxxxx pursuant to Section 15 below or, in the event that no such person is named who survives Xxxxx, his estate.
(b) “Board” shall mean the Board of Directors of Aeroflex.
(c) “Cause” shall mean:
(i) Xxxxx’x conviction of a felony involving an act or acts of dishonesty on his part and resulting or intended to result directly or indirectly in gain or personal enrichment at the expense of Aeroflex;
(ii) willful and continued failure of Xxxxx to perform his obligations under this Agreement, resulting in demonstrable material economic harm to Aeroflex; or
(iii) a material breach by Xxxxx of the provisions of Sections 12 or 13 below to the demonstrable and material detriment of Aeroflex.
Notwithstanding the foregoing, in no event shall Xxxxx’x failure to perform the duties associated with his position caused by his Disability constitute Cause for his termination.
For purposes of this Section 1(c), no act or failure to act on the part of Xxxxx shall be considered “willful” unless it is done, or omitted to be done, by him in bad faith or without reasonable belief that his action or omission was in the best interests of Aeroflex. Any act or failure to act based upon authority given pursuant to a resolution adopted by the Board or based upon the advice of counsel for Aeroflex shall be conclusively presumed to be done, or omitted to be done, by Xxxxx in good faith and in the best interests of Aeroflex.
(d) “Change in Control” shall mean the occurrence of a change in the ownership or control of Aeroflex within the meaning of Section 280G of the Code and the regulations thereunder.
(e) “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
(f) “Consulting Period” shall mean the period specified in Section 11 below during which Xxxxx serves as a consultant to Aeroflex.
(g) “Disability” shall mean the illness or other mental or physical disability of Xxxxx, as determined by a physician acceptable to Aeroflex and Xxxxx, resulting in his failure during the Employment Term or the Consulting Period, as the case may be, (i) to perform substantially his applicable material duties under this Agreement for a period of 90 consecutive days or 180 days in any 12 month period and (ii) to return to the performance of his duties within 30 days after receiving written notice of termination. Notwithstanding the foregoing, no such condition shall be considered a “Disability,” unless such condition also meets the requirements of being “Disabled” under Section 409A(a)(2)(C) of the Code.
(h) “Employment Term” shall mean the period specified in Section 2(b) below.
(i) “Fiscal Year” shall mean the 12-month period beginning on July 1 and ending on the next subsequent June 30, or such other 12-month period as may constitute Aeroflex’s fiscal year at any time hereafter.
(j) “Good Reason” shall mean, at any time during the Employment Term, without Xxxxx’x prior written consent or his acquiescence:
(i) reduction in his then current Salary;
(ii) diminution, reduction or other adverse change in the bonus or incentive compensation opportunities available to Xxxxx (with respect to the level of bonus or incentive compensation opportunities, the applicable performance criteria and otherwise the manner in which bonuses and incentive compensation are determined) in the aggregate from those available as of the Effective Date in accordance with Section 4(a) below;
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(iii) Aeroflex’s failure to pay Xxxxx any amounts otherwise vested and due him hereunder or under any plan or policy of Aeroflex;
(iv) diminution of Xxxxx’x titles, position, authorities or responsibilities, including not serving on the Board;
(v) assignment to Xxxxx of duties incompatible with his position as a senior executive officer;
(vi) imposition of a requirement that Xxxxx report other than directly to Aeroflex’s Board;
(vii) a material breach of the Agreement by Aeroflex that is not cured within 10 business days after written notification by Xxxxx of such breach; or
(viii) relocation of Aeroflex’s corporate headquarters to a location more than 35 miles from the location first above described;
provided, that the divesture by Aeroflex of assets representing up to sixty percent (60%) of Aeroflex’s EBITDA shall not result in a diminution of Xxxxx’x positions, authorities or responsibilities.
Xxxxx shall provide Aeroflex written notice specifying such event or deficiency constituting Good Reason within ninety (90) days following Xxxxx’x knowledge of the occurrence of such event and Aeroflex shall have thirty (30) days after receipt of such notice to cure the event or deficiency that would result in Good Reason.
(k) “Retirement” shall mean the voluntary termination of Xxxxx’x employment, other than due to Disability, death or for Good Reason.
(l) “Salary” shall mean the annual salary provided for in Section 3 below, as adjusted from time to time.
(m) “Spouse” shall mean, during the Employment Term and the Consulting Period, the woman who as of any relevant date is legally married to Xxxxx.
(n) “Subsidiary” shall mean any corporation of which Aeroflex owns, directly or indirectly, more than 50 percent of its voting stock.
| 2. | EMPLOYMENT TERM, POSITIONS AND DUTIES. |
(a) Employment of Xxxxx. Aeroflex hereby continues to employ Xxxxx, and Xxxxx hereby accepts continued employment with Aeroflex, in the positions and with the duties and responsibilities set forth below and upon such other terms and conditions as are hereinafter stated. Xxxxx shall render services to Aeroflex principally at Aeroflex’s corporate headquarters, but he shall do such traveling on behalf of Aeroflex as shall be reasonably required in the course of the performance of his duties hereunder.
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(i) Until the date of termination of his employment hereunder, Xxxxx shall be employed as the Chief Executive Officer of Aeroflex, reporting to the Board. In his capacity as the Chief Executive Officer, Xxxxx shall have the customary powers, responsibilities and authorities of chief executive officers of corporations of the size, type and nature of Aeroflex including, without limitation, authority, in conjunction with the Board as appropriate, to hire and terminate other employees of Aeroflex.
(ii) During the Employment Term, until a Change in Control, Xxxxx shall be a member of the Board of Directors of Aeroflex Holding Corp and the Board of Managers of VGG Holding LLC.
(d) Time and Effort.
(i) Xxxxx agrees to devote his best efforts and abilities and his full business time and attention to the affairs of Aeroflex in order to carry out his duties and responsibilities under this Agreement.
(ii) Notwithstanding the foregoing, nothing shall preclude Xxxxx from (A) serving on the boards of a reasonable number of trade associations, charitable organizations and/or businesses not in competition with Aeroflex, (B) engaging in charitable activities and community affairs and (C) managing his personal investments and affairs; provided, however, that, such activities do not materially interfere with the proper performance of his duties and responsibilities specified in Section 2 (c) above.
| 3. | SALARY. |
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| 4. | BONUS. |
(a) For the 2014 Fiscal Year, Xxxxx shall be eligible to receive an annual bonus of between 50% and 150% of his Base Salary based upon the achievement of the Company’s EBITDA targets for the 2014 Fiscal Year as established by the Board. More particularly, (i) 50% of Xxxxx’x 2014 Base Salary will be awarded to Xxxxx as a bonus if the Company’s 2014 EBITDA is equal to the minimum 2014 EBITDA target established by the Board (the “Threshold EBITDA”); (ii) 100% of Xxxxx’x Base Salary will be awarded as a bonus if the Company’s 2014 EBITDA is equal to the 2014 EBITDA Target established by the Board (the “ EBITDA Target” or the “2014 Target Bonus”); and (iii) 150% of Xxxxx’x Base Salary will be awarded to Xxxxx as a bonus if the Company’s 2014 EBITDA is equal to or greater than the maximum 2014 EBITDA Target established by the Board (the “Maximum EBITDA”). Xxxxx’x 2014 bonus shall be determined by linear interpolation if the Company’s 2014 EBITDA is between the Threshold EBITDA and the EBITDA Target or between the EBITDA Target and the Maximum EBITDA, as the case may be. No annual bonus will be paid if the Company’s 2014 EBITDA is below the Threshold EBITDA for the 2014 Fiscal Year. The EBITDA Target shall be subject to equitable redetermination by the Board in the event of any divestiture, acquisition or other extraordinary event and to such modification, as may be appropriate, to reflect various types of accounting adjustments that historically and otherwise have been or are approved by the Compensation Committee.
(b) Beginning with Fiscal Year 2015 and for each Fiscal Year thereafter, during the term of Xxxxx’x employment hereunder, Xxxxx shall be eligible to earn an annual performance bonus (the “Performance Bonus”). The target amount of such annual bonus (if any) will be 100% percent of Xxxxx’x Base Salary for the applicable fiscal year (the “Target Bonus”). The minimum amount of such annual bonus will be 50% percent of Xxxxx’x Base Salary for the applicable fiscal year (the “Minimum Bonus”) and the maximum amount of such annual bonus will be 150% percent of Xxxxx’x Base Salary for the applicable fiscal year (the “Maximum Bonus”). The terms and conditions of the Performance Bonus will be as set forth in the Company’s applicable performance bonus plan, as the Company may adopt from time to time.
(c) Any annual bonus payable pursuant to this Section 4 shall be paid on or prior to March 15 of the year following the year such bonus is earned.
| 5. | EXPENSE REIMBURSEMENT; CERTAIN OTHER COSTS |
During the Employment Term and any Consulting Period, Xxxxx shall be entitled to prompt reimbursement by Aeroflex for all reasonable out-of-pocket expenses incurred by him in performing services under this Agreement, upon his submission of such accounts and records as may be reasonably required by Aeroflex. In addition, Xxxxx shall be entitled to payment by Aeroflex of all reasonable costs and expenses, including attorneys’ and consultants’ fees and disbursements, incurred by him in connection with adoption of this Agreement.
| 6. | PERQUISITES. |
(a) During the Employment Term and, any Consulting Period, Aeroflex shall provide Xxxxx with the following perquisites:
(i) an office of a size and with furnishings and other appointments, and exclusive personal secretarial and other assistance, at least equal to that provided to Xxxxx by Aeroflex immediately prior to the Effective Date; and
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(ii) the use of an automobile and payment of related expenses on the same terms as are in effect immediately prior to the Effective Date or, if more favorable to Xxxxx, as are made available generally to other executive officers of Aeroflex at any time thereafter.
(b) During the Employment Term, Xxxxx shall be entitled to use a plane maintained by Aeroflex for 10 hours per year, unused hours may be rolled forward into future years. Xxxxx shall pay Aeroflex an amount for such use equal to the minimum amount of income imputed for such use as determined under applicable federal and state rules and regulations (the “Minimum Imputed Income Amount”). In the event Aeroflex does not maintain a plane, as long as Xxxxx is employed by Aeroflex, then Aeroflex shall annually reimburse Executive for the cost associated with the use of a comparable plane for up to 10 hours less the Minimum Imputed Income Amount; provided, however, that, if Xxxxx does not use the full ten hours in any given year, Aeroflex shall pay Xxxxx the Minimum Imputed Income Amount for such unused hours. Any payments required under this Section 6(b) shall be made prior to the end of the calendar year for which such payments relate.
| 7. | EMPLOYEE BENEFIT PLANS. |
(a) General. During the Employment Term, Xxxxx shall be entitled to participate in all employee benefit plans and programs that are made available to Aeroflex’s senior executives or to its employees generally, as such plans or programs may be in effect from time to time, including, without limitation, pension and other retirement plans, profit-sharing plans, savings and similar plans, group life insurance, accidental death and dismemberment insurance, travel accident insurance, hospitalization insurance, surgical insurance, major and excess major medical insurance, dental insurance, short-term and long-term disability insurance, sick leave (including salary continuation arrangements), holidays, vacation (not less than four weeks in any calendar year) and any other employee benefit plans or programs that may be sponsored by Aeroflex from time to time, including plans that supplement the above-listed types of plans, whether funded or unfunded.
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| 8. | TERMINATION OF EMPLOYMENT. |
(i) his Salary through the date of termination;
(ii) any unused vacation from prior years;
(iii) any reimbursements payable in accordance with Sections 5 above of any business expenses incurred by Xxxxx, through the date of termination but not yet paid to him;
(iv) any other compensation or benefits, including without limitation employee benefits under plans described in Section 7 above, that have vested through the date of termination or to which he may then be entitled in accordance with the applicable terms and conditions of each grant, award or plan; and
(v) reimbursement in accordance with Sections 7(a) and (b) above of any business and medical expenses incurred by Xxxxx or his Spouse, as applicable, through the date of termination but not yet paid to him.
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In the event that Xxxxx’x employment is terminated for Cause, he shall be entitled only to the compensation and benefits specified in Section 8(b).
(g) Termination Without Cause or by Xxxxx for Good Reason.
(i) Termination without Cause shall mean termination of Xxxxx’x employment by Aeroflex and shall exclude termination (A) due to Retirement, death, Disability or Cause or (B) by mutual agreement of Xxxxx and Aeroflex. Aeroflex shall provide Xxxxx 15 days’ prior written notice of termination by it without Cause, and Xxxxx shall provide Aeroflex 30 days’ prior written notice of his termination for Good Reason.
(ii) In the event of termination by Aeroflex of Xxxxx’x employment without Cause or of termination by Xxxxx of his employment for Good Reason, subject to Xxxxx’x execution and nonrevocation of a general release in favor of Aeroflex, its affiliates and their current and former officers, directors and employees, in substantially the form attached hereto as Exhibit A within 30 days following the date of such termination, Xxxxx shall be entitled, commencing, notwithstanding any provision to the contrary in Sections 8(g)(ii)(A)-(D), on the 30th day following such termination of employment (provided that, payments or benefits that would otherwise have been owed to Xxxxx prior to the 30th day after termination of employment shall be made to or on behalf of Xxxxx on the 30th day after his termination of employment), in addition to the compensation and benefits specified in Section 8(b), to the following payments and benefits:
(A) his Salary, payable for the remainder of the Employment Term (assuming Xxxxx’x employment had not terminated) at the rate in effect immediately before such termination;
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(B) annual bonuses for the remainder of the Employment Term (assuming Xxxxx’x employment had not terminated) (including a prorated bonus for any partial Fiscal Year) equal to the average of the highest annual bonuses (not to exceed 3 years) awarded to him during the Fiscal Years (not to exceed 10 years) commencing after August 15, 2007 (including, without limitation, any bonus awarded to Xxxxx in the year of termination, which is unpaid as of the date of termination), such bonuses to be paid at the same time annual bonuses are regularly paid by Aeroflex to Xxxxx;
(C) continued medical reimbursement for the remainder of the Employment Term (assuming Xxxxx’x employment had not terminated) and thereafter the lifetime medical benefits described in Section 7(b) above;
(D) continued participation in all employee benefit plans or programs available to Aeroflex employees generally in which Xxxxx was participating on the date of termination of his employment until the end of the Employment Term (assuming Xxxxx’x employment had not terminated); provided; however, that (x) if Xxxxx is precluded from continuing his participation in any employee benefit plan or program as provided in this clause (D), he shall be entitled to the after-tax economic equivalent, paid in a lump sum on the 30th day following termination of Xxxxx’x employment, of the benefits under the plan or program in which he is unable to participate until the end of the Employment Term, and (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that Xxxxx would incur in obtaining such benefit on an individual basis; and
(E) other benefits in accordance with applicable plans and programs of Aeroflex.
(iii) Prior written consent by Xxxxx to any of the events described in Section 1(j) above shall be deemed a waiver by him of his right to terminate for Good Reason under this Section 8(g) solely by reason of the events set forth in such waiver.
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| 9. | NO DUTY TO MITIGATE; NO OFFSET. |
Xxxxx shall not be required to mitigate damages or the amount of any payment provided for under this Agreement by seeking other employment or otherwise, nor will any payment hereunder be subject to offset in the event Xxxxx does receive compensation for services from any other source.
| 10. | PARACHUTE PAYMENTS. |
If, in connection with a Change in Control, Aeroflex determines in good faith that any payments or benefits (whether made or provided pursuant to this Agreement or otherwise) (each a “Payment”) provided to Xxxxx constitute “parachute payments” within the meaning of Section 280G of the Code, and may be subject to an excise tax imposed pursuant to Section 4999 of the Code (the “Excise Tax”) or to any similar tax imposed by state or local law, then the aggregate amount of Payments payable to Xxxxx shall be reduced to the aggregate amount of Payments that may be made to Xxxxx without incurring an Excise Tax; provided, however, that such reduction shall only be effected if the aggregate after-tax value of the Payments retained by Xxxxx (after giving effect to such reduction) is equal to or greater than the aggregate after-tax value (after giving effect to the Excise Tax) of the Payments to Xxxxx without any such reduction, as determined by Aeroflex’s auditors. Any such reduction in the preceding sentence shall be done first by reducing any cash payments with the last payment reduced first; next any equity or equity derivatives that are included under Section 280G of the Code at full value rather than accelerated value; next any equity or equity derivatives based on acceleration value shall be reduced with the highest value reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); finally any other non-cash benefits will be reduced.
| 11. | CONSULTING PERIOD. |
(b) Duties and Extent of Services.
(i) During the Consulting Period, Xxxxx shall consult with Aeroflex and its senior executive officers regarding its respective businesses and operations. Such consulting services shall not require more than 50 days in any calendar year, nor more than one day in any week, it being understood and agreed that during the Consulting Period Xxxxx shall have the right, consistent with the prohibitions of Sections 12 and 13 below, to engage in full-time or part-time employment with any business enterprise that is not a competitor of Aeroflex.
(ii) Xxxxx’x service as a consultant shall only be required at such times and such places as shall not result in unreasonable inconvenience to him, recognizing that he may have to accord priority to his other business commitments over the performance of services for Aeroflex. In order to minimize interference with Xxxxx’x other commitments, his consulting services may be rendered by personal consultation at his residence or office wherever maintained, or by correspondence through mail, telephone, fax or other similar mode of communication at times, including weekends and evenings, most convenient to him.
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(iii) During the Consulting Period, Xxxxx shall not be obligated to serve as a member of the Board or to occupy any office on behalf of Aeroflex or any of its Subsidiaries.
| 12. | CONFIDENTIAL INFORMATION. |
(i) Xxxxx understands and hereby acknowledges that as a result of his employment with Aeroflex he will necessarily become informed of and have access to certain valuable and confidential information of Aeroflex and any of its Subsidiaries, joint ventures and affiliates, including, without limitation, inventions, trade secrets, technical information, computer software and programs, know-how and plans (“Confidential Information”), and that any such Confidential Information, even though it may be developed or otherwise acquired by Xxxxx, is the exclusive property of Aeroflex to be held by him in trust solely for Aeroflex’s benefit.
(ii) Accordingly, Xxxxx hereby agrees that, during the Employment Term and the Consulting Period and subsequent to both, he shall not, and shall not cause others to, use, reveal, report, publish, transfer or otherwise disclose to any person, corporation or other entity any Confidential Information without prior written consent of the Board, except to (A) responsible officers and employees of Aeroflex or (B) responsible persons who are in a contractual or fiduciary relationship with Aeroflex or who need such information for purposes in the interest of Aeroflex. Notwithstanding the foregoing, the prohibitions of this clause (ii) shall not apply to any Confidential Information that becomes of general public knowledge other than from Xxxxx or is required to be divulged by court order or administrative process; provided that Xxxxx shall give prompt written notice to Aeroflex of such requirement, disclose no more information than is so required, and cooperate with any attempts by Aeroflex to obtain a protective order or similar treatment.
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| 13. | NONCOMPETITION/NONSOLICITATION. |
(a) Prohibitions. During Xxxxx’x employment with Aeroflex and, if applicable, the Consulting Period and until two years following the Xxxxx’x termination of employment for any reason or the Consulting Period, as applicable, Xxxxx shall not, without prior written authorization of the Board, directly or indirectly,
(i) whether individually, as a director, manager, member, stockholder, partner, owner, employee, consultant or agent of any business, or in any other capacity, other than on behalf of Aeroflex or a subsidiary, organize, establish, own, operate, manage, control, engage in, participate in, invest in, permit his name to be used by, act as a consultant or advisor to, render services for (alone or in association with any person, firm, corporation or business organization), or otherwise assist any person or entity that engages in or owns, invests in, operates, manages or controls any venture or enterprise which engages or proposes to engage in any business conducted by Aeroflex or any of its subsidiaries on the date of Xxxxx’x termination of employment or within twelve (12) months of Xxxxx’x termination of employment in the geographic locations where Aeroflex and its subsidiaries engage or propose to engage in such business;
(ii) solicit or induce any customer of Aeroflex to cease purchasing goods or services from Aeroflex or to become a customer of any competitor of Aeroflex; or
(iii) solicit or attempt to solicit any employee of Aeroflex or any of its subsidiaries (a “Current Employee”) or any person who was an employee of Aeroflex or any of its subsidiaries during the twelve (12) month period immediately prior to the date Xxxxx’x employment terminates (a “Former Employee”) to terminate such employee’s employment relationship with Aeroflex in order, in either case, to enter into a similar relationship with Xxxxx, or any other person or any entity or hire any employee or Former Employee.
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| 14. | REMEDIES/SANCTIONS. |
Xxxxx acknowledges that the services he is to render under this Agreement are of a unique and special nature, the loss of which cannot reasonably or adequately be compensated for in monetary damages, and that irreparable injury and damage may result to Aeroflex in the event of any breach of this Agreement or default by Xxxxx. Because of the unique nature of the Confidential Information and the importance of the prohibitions against competition and solicitation, Xxxxx further acknowledges and agrees that Aeroflex will suffer irreparable harm if he fails to comply with his obligations under Section 12(a) or (b) above or Section 13(a) above and that monetary damages would be inadequate to compensate Aeroflex for any such breach. Accordingly, Xxxxx agrees that, in addition to any other remedies available to either Party at law, in equity or otherwise, Aeroflex will be entitled to seek injunctive relief or specific performance to enforce the terms (without the posting of a bond), or prevent or remedy the violation, of any provisions of this Agreement. In addition, without limiting Aeroflex’s remedies for any breach of any restriction on Xxxxx set forth in Sections 12(a) or (b) above or Section 13(a) above, except as required by law, Aeroflex will have no obligation to pay or provide any of the amounts or benefits under Sections 7 or 8 above.
| 15. | BENEFICIARIES/REFERENCES. |
Xxxxx shall be entitled to select (and change, to the extent permitted under any applicable law) a Beneficiary or Beneficiaries to receive any compensation or benefit payable under this Agreement following his death by giving Aeroflex written notice thereof; provided, however, that absent any then effective contrary notice, his Beneficiary shall be his surviving Spouse. In the event of Xxxxx’x death, or of a judicial determination of his incompetence, reference in this Agreement to Xxxxx shall be deemed to refer, as appropriate, to his Beneficiary, estate or other legal representative.
| 16. | WITHHOLDING TAXES. |
All payments to Xxxxx or his Beneficiary under this Agreement shall be subject to withholding on account of federal, state and local taxes as required by law.
| 17. | INDEMNIFICATION AND LIABILITY INSURANCE. |
Nothing herein is intended to limit Aeroflex’s indemnification of Xxxxx, and Aeroflex shall indemnify him to the fullest extent permitted by applicable law consistent with Aeroflex’s Certificate of Incorporation and By-Laws as in effect on the Effective Date, with respect to any action or failure to act on his part while he is an officer, director or employee of Aeroflex or any Subsidiary. Aeroflex shall cause Xxxxx to be covered at all times by directors’ and officers’ liability insurance on terms no less favorable than provided to other directors’ and officers’. Aeroflex shall continue to indemnify Xxxxx as provided above and maintain such liability insurance coverage for him after the Employment Term and, if applicable, the Consulting Period, for any claims that may be made against him with respect to his service as a director or officer of Aeroflex or as a consultant to Aeroflex.
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| 18. | EFFECT OF AGREEMENT ON OTHER BENEFITS. |
The existence of this Agreement shall not prohibit or restrict Xxxxx’x entitlement to participate fully in compensation, employee benefit and other plans of Aeroflex in which senior executives are eligible to participate.
| 19. | ASSIGNABILITY; BINDING NATURE. |
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs (in the case of Xxxxx) and assigns. No rights or obligations of Aeroflex under this Agreement may be assigned or transferred by Aeroflex except pursuant to (a) a merger or consolidation in which Aeroflex is not the continuing entity or (b) sale or liquidation of all or substantially all of the assets of Aeroflex, provided that the surviving entity or assignee or transferee is the successor to all or substantially all of the assets of Aeroflex and such surviving entity or assignee or transferee assumes the liabilities, obligations and duties of Aeroflex under this Agreement, either contractually or as a matter of law.
| 20. | REPRESENTATIONS. |
The Parties respectively represent and warrant that each is fully authorized and empowered to enter into this Agreement and that the performance of its or his obligations, as the case may be, under this Agreement will not violate any agreement between such Party and any other person, firm or organization. Aeroflex represents and warrants that this Agreement has been duly authorized by all necessary corporate action and is valid, binding and enforceable in accordance with its terms.
| 21. | ENTIRE AGREEMENT. |
Except to the extent otherwise provided herein, this Agreement contains the entire understanding and agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, whether written or oral, between the Parties concerning the subject matter hereof, including without limitation the Prior Agreement, as amended. Payments and benefits provided under this Agreement are in lieu of any payments or other benefits under any severance program or policy of Aeroflex to which Xxxxx would otherwise be entitled.
| 22. | AMENDMENT OR WAIVER. |
No provision in this Agreement may be amended unless such amendment is agreed to in writing and signed by both Xxxxx and an authorized officer of Aeroflex. No waiver by either Party of any breach by the other Party of any condition or provision contained in this Agreement to be performed by such other Party shall be deemed a waiver of a similar or dissimilar condition or provision at the same or any prior or subsequent time. Any waiver must be in writing and signed by the Party to be charged with the waiver. No delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof.
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| 23. | SEVERABILITY. |
In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law.
| 24. | SURVIVAL. |
The respective rights and obligations of the Parties under this Agreement shall survive any termination of Xxxxx’x employment with Aeroflex.
| 25. | GOVERNING LAW/JURISDICTION. |
This Agreement shall be governed by and construed and interpreted in accordance with the laws of New York, without reference to principles of conflict of laws.
| 26. | NOTICES. |
Any notice given to either Party shall be in writing and shall be deemed to have been given when delivered either personally, by fax, by overnight delivery service (such as Federal Express) or sent by certified or registered mail postage prepaid, return receipt requested, duly addressed to the Party concerned at the address indicated below or to such changed address as the Party may subsequently give notice of.
If to Aeroflex or the Board:
Aeroflex Incorporated
00 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
FAX: (000) 000-0000
With a copy to:
Veritas Capital Management II, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
And a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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If to Xxxxx:
Xxxxxxx Xxxxx
0000 Xxxx Xxxxx Xxx
Xxxxxx Xxxxx, Xxxxxxx 00000
| 27. | HEADINGS. |
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.
| 28. | COUNTERPARTS. |
This Agreement may be executed in counterparts, each of which when so executed and delivered shall be an original, but all such counterparts together shall constitute one and the same instrument.
| 29. | COMPLIANCE WITH CODE SECTION 409A. |
It is intended that any expense reimbursement made under this Agreement shall be exempt from Code Section 409A. Notwithstanding the foregoing, if any expense reimbursement shall be determined to be “deferred compensation” within the meaning of Code Section 409A, including without limitation any reimbursement under Sections 5, 6(a), and 8(g)(ii)(C), then the reimbursement shall be made to Xxxxx as soon as practicable after submission of the reimbursement request, but no later than December 31 of the year following the year during which such expense was incurred.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
| EMPLOYEE: | ||||
| WITNESS: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| AEROFLEX INCORPORATED | ||||
| ATTEST: | By: | /s/Xxxx Xxxxxxxxx, Xx. | ||
| Name: | Name: Xxxx Xxxxxxxxx, Xx. | |||
| Title: Sr. Vice President & CFO | ||||
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