CHANGE-IN-CONTROL AGREEMENT Tier 3
Exhibit 10(b)(2)
Tier
3
Dated
September 16, 2008
PERSONAL AND
CONFIDENTIAL
«First_Name»
«Last_Name»
«Job_Title»
«Company»
Dear
«First_Name»:
Comtech
Telecommunications Corp. (the “Company”) considers it essential to the best
interests of its stockholders to xxxxxx the continued employment of key
management personnel. Our Board of Directors (the “Board”) recognizes
that the possibility of a change in ownership or control of the Company may
result in the departure or distraction of key personnel to the detriment of the
Company and our stockholders. Therefore, the Board has determined to
enter into this agreement with you (i) to encourage and reinforce your attention
and dedication to your assigned duties without distraction in the face of the
disruptive circumstances that can arise from a possible change in control of the
Company, (ii) to enhance our ability to retain you in those circumstances, and
(iii) to provide you with fair and reasonable protection from the risks of a
change in ownership and control so that you will be in a position to help the
Company complete a transaction that would be beneficial to
stockholders. This Agreement amends and restates the
Change-in-Control Agreement between the Company and you dated September 18,
2007, which is superseded in its entirety by the terms of this
Agreement.
You and
the Company agree as follows:
1. Term of Agreement and
Protected Period.
(a) Term of Agreement.
The period during which this Agreement shall be in effect (the “Term”) shall be
the period August 1, 2008 through the close of business on July 31, 2010; provided, however,
that the Term shall be automatically renewed for successive one-year periods
unless either party hereto gives written notice of non-renewal to the other
party at least sixty (60) days prior to the expiration of the then current Term;
and provided
further, that
if a Change in Control has occurred prior to expiration of the then current
Term, the Term shall continue until the date that is twenty-four (24) months
after such occurrence of a Change in Control. The foregoing
notwithstanding, if you remain employed with the Company at the end of the
Protected Period (as defined below), the Company's obligations under Section
3(g) (and related provisions) will continue during the defined "Extended
Severance Period" after the end of the Protected Period.
(b) Protected Period. The
“Protected Period” is the period from the time of occurrence of a Change in
Control until the date that is twenty-four (24) months after the occurrence of
the Change in Control. Notwithstanding the preceding sentence, the
introductory text to Section 3 provides that certain events occurring before a
Change in Control shall be deemed to have occurred during the Protected
Period.
2. Change in
Control.
“Change in Control” shall mean the
occurrence during the Term of a Change in Control as defined in Section 14.2 of
the 2000 Stock Incentive Plan, as such Plan may be amended from time to
time.
3. Termination and Resulting
Compensation.
The Agreement provides no compensation
or benefits in connection with Terminations which occur prior to a Change in
Control, except that, if you are Terminated within 90 days prior to a Change in
Control by the Company without Cause at the direction of a Person who has
entered into an agreement with the Company the consummation of which will
constitute a Change in Control, or if you Terminate with Good Reason within 90
days prior to a Change in Control (treating the entry by such a Person into such
an agreement as a Change in Control in applying the definition of Good Reason)
if the circumstance or event which constitutes Good Reason occurs at the
direction of such Person, then your Termination shall be deemed to have been
during the Protected Period and following a Change in Control and shall qualify
for the compensation specified in Section 3(b); with payments thereunder to
occur on the business day following the 52d day after the Change in Control
(subject to the legal effectiveness of your release), except that, if a payment
is deemed to be a deferral of compensation for purposes of Section 409A of the
Internal Revenue Code (the "Code") and the Change in Control did not constitute
a change in the ownership of the Company, a change in effective control of the
Company, or a change in the ownership of a substantial portion of the assets of
the Company, as defined in Treasury Regulation § 1.409A-3(i)(5), then
settlement shall occur at the date six months after your Date of
Termination.
(a) Termination by the Company
for Cause, by You Without Good Reason, or by Reason of Death, and Failure to
Perform Duties Due to Disability. If during the Protected Period you are
Terminated by the Company for Cause, you voluntarily Terminate without Good
Reason, Termination occurs due to your death, or Termination results from your
failure to perform your duties with the Company due to a disability, the Company
will have no obligation to pay any compensation or benefits to you under this
Agreement.
(b) Terminations Triggering
Severance Compensation. In lieu of any other severance compensation to
which you may otherwise be entitled under any plan, program, policy or
arrangement of the Company or any subsidiary, entitlement to which you hereby
expressly waive, the Company will pay you the payments described in this Section
3(b) (the “Severance Payments”) upon Termination during the Protected Period and
during the Term, unless such termination is (A) by the Company for Cause, (B) by
reason of death, (C) due to your failure to perform your duties with
the Company due to disability (for which you qualify for disability benefits),
or (D) by you without Good Reason. The compensation provided under
this Section 3(b) is as follows:
(i) The
Company will pay you a lump sum severance payment, in cash, equal to 1.5 times
your Annual Compensation. For this purpose, your "Annual
Compensation" will be the sum of (A) plus (B), where (A) is the greater of your
annual base salary in effect immediately prior to the occurrence of the event or
circumstance upon which the Notice of Termination is based or your annual base
salary in effect immediately prior to the Change in Control, and (B) is the
amount equal to your average annual incentive award (i.e., bonus) actually paid
or payable for performance in the three fiscal years preceding the year of your
Termination; provided that, if you were not
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employed
by the Company or a then wholly owned subsidiary of the Company for the full
three-fiscal-year period, your average annual incentive will be the annual
average of the sum of the amounts of your annual incentive award paid for
performance in the fiscal year or fiscal years during such period as to which
you were employed during the full fiscal year plus the annualized annual
incentive paid in any partial year in such period in which you were employed;
and provided further, that for this purpose only annual incentive amounts paid
for service to the Company or to a subsidiary that was at the time of such
service wholly owned (directly or indirectly) by the Company shall be
considered.
(ii) Other provisions of
any plan or annual incentive award authorization notwithstanding, with respect
to your annual incentive award for the fiscal year in progress at your Date of
Termination and your annual incentive award for any previously completed year
for which your final annual incentive award has not yet been determined by the
Board committee or other authorized decision maker with authority to make such
determination (the "Committee"):
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(A)
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If
and to the extent that the level of your earning of any such award is
based on one or more pre-set performance goals, any such award shall be
deemed vested as of the Date of Termination based on the level of actual
achievement of your applicable performance goal through the earlier of the
end of the performance period or the Date of Termination. For
this purpose, the level of actual achievement of your performance goal
through the applicable date shall be determined in good faith by the
Committee and without the exercise of negative discretion, and any
requirement that this determination be based on audited financial results
shall not apply.
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(B)
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If
and to the extent that the level of your earning of any such award is not
based on pre-set performance goals (i.e., is discretionary), any such
award shall be deemed vested as of the date of Termination and shall be
deemed earned at a level consistent with the level of annual incentives
(as a percentage of base salary) of other executives of comparable rank
whose annual incentives are based on pre-set performance goals, provided
that the annual incentive shall in no event be less than a pro rata amount
of your average prior years' annual incentive amount determined under
Section 3(b)(i)(B) above (with prorationing based on the portion of the
applicable fiscal year during which you were employed). These
determinations shall be made in good faith by the Committee and without
the exercise of negative discretion, as provided
above.
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(C)
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No
amount of such award will be payable based on performance after the Date
of Termination under this Section 3(b)(ii). If you are entitled
to all or any portion of the annual incentive under any other plan or
authorization, the amount payable hereunder will not be paid to the extent
it would duplicate such payment of the annual incentive. The
provisions regarding the timing of payment under Section 3(d) take
precedence over any other payment timing rule applicable to any such
annual incentive.
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(D)
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In
connection with this award, you will not be required to execute the
Acknowledgement customarily required as a condition of payment of annual
incentive awards.
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For
purposes of this Section 3(b)(ii), if no annual incentive award opportunity has
been established for you for the fiscal year in progress at your Date of
Termination, your annual incentive award opportunity for that year will be
deemed to be identical to the annual incentive award opportunity that was
established for the preceding year.
(iii)
Your stock options and other equity awards shall be governed by the terms of the
applicable plans and award agreements.
(c) Gross-Up If Excise Tax Would
Apply. In the
event you become entitled to any amounts or benefits payable in connection with
a Change in Control (whether or not such amounts are payable pursuant to this
Agreement) (the “Change in Control Payments”), if any of such Change in Control
Payments are subject to the tax (the “Excise Tax”) imposed by Section 4999
of the Code (or any similar federal, state or local tax that may hereafter be
imposed), the Company shall pay to you at the time specified in
Section 3(c)(iii) hereof an additional amount (the “Gross-Up Payment”) such
that the net amount retained by you, after deduction of any Excise Tax on the
Total Payments (as hereinafter defined) and any federal, state and local income
tax and Excise Tax upon the payment provided for by Section 3(c)(i), shall
be equal to the Total Payments.
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(i)
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For
purposes of determining whether any of the Change in Control Payments will
be subject to the Excise Tax and the amount of such Excise
Tax:
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(A)
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Any
other payments or benefits received or to be received by you in connection
with a Change in Control or your termination of employment (whether
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with the Company, any Person whose actions result in a Change in
Control or any Person affiliated with the Company or such Person) (which,
together with the Change in Control Payments, constitute the “Total
Payments”) shall be treated as “parachute payments” within the meaning of
Section 280G(b)(2) of the Code, and all “excess parachute
payments” within the meaning of Section 280G(b)(1) of the Code
shall be treated as subject to the Excise Tax, unless in the opinion of a
nationally-recognized tax counsel selected by the Company such other
payments or benefits (in whole or in part) do not constitute parachute
payments, or such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered within
the meaning of Section 280G(b)(4) of the Code in excess of the
base amount within the meaning of Section 280G(b)(3) of the
Code, or are otherwise not subject to the Excise
Tax;
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(B)
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The
amount of the Total Payments which shall be treated as subject to the
Excise Tax shall be equal to the lesser of (x) the total amount of the
Total Payments and (y) the amount of excess parachute payments within the
meaning of Section 280G(b)(1) of the Code (after applying
Section 3(c)(i)(A) hereof);
and
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(C)
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The
value of any non-cash benefits or any deferred payments or benefit shall
be determined by a nationally-recognized
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accounting
firm selected by the Company in accordance with the principles of Sections
280G(d)(3) and (4) of the
Code.
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(ii)
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For
purposes of determining the amount of the Gross-Up Payment, you will be
deemed to pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-Up Payment is to
be made and state and local income taxes at the highest marginal rate of
taxation in the state and locality of your residence on the Date of
Termination, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local
taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the
time of the Change in Control, you will repay to the Company within ten
days after the time that the amount of such reduction in Excise Tax is
finally determined the portion of the Gross-Up Payment attributable to
such reduction (plus the portion of the Gross-Up Payment attributable to
the Excise Tax and federal and state and local income tax imposed on the
Gross-Up Payment being repaid by you if such repayment results in a
reduction in Excise Tax and/or federal and state and local income tax
deduction) plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(B) of the Code. In the event
that the Excise Tax is determined to exceed the amount taken into account
hereunder at the time of the Change in Control (including by reason of any
payment the existence or amount of which cannot be determined at the time
of the Gross-Up Payment), the Company shall make an additional Gross-Up
Payment in respect of such excess within ten days after the time that the
amount of such excess is finally
determined.
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(iii)
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The
Gross-Up Payment provided for in this Section 3(c) shall be made at the
same time as the Change in Control Payments are made; provided,
however, that if the amount of such Gross-Up Payment cannot be
finally determined at the same time as the Change in Control Payments are
made, the Company shall pay to you at the time the Change in Control
Payments are made an estimate, as determined in good faith by the Company,
of the minimum amount of such Gross-Up Payment and shall pay the remainder
of such Gross-Up Payment (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) at the time provided in Section
3(c)(ii) above. In any event, any Gross-Up Payment shall be
made under this Section 3(c) not later than the last day of your taxable
year next following the taxable year in which you are required to remit
the Excise Tax. Anything in this Section 3(c) to the contrary
notwithstanding, any Gross-Up Payment to be made hereunder shall be
subject to such delay in payment as may apply under Section 3(d) of this
Agreement in the event that such payment is made in connection with your
Termination of Employment and is deemed to be a deferral of compensation
subject to Section 409A of the Code. Your right to payments
under this Section 3(c) shall be treated as a right to a series of
separate payments under Treasury Regulation §
1.409A-2(b)(2)(iii). In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been
due, such excess shall be repayable on the terms set forth in Section
3(c)(ii). Other provisions of this Section 3(c)
notwithstanding, nothing in this Section 3(c) is intended to violate the
Xxxxxxxx-Xxxxx Act of 2002, and to the extent that any advance or
repayment obligation hereunder would do so, such obligation shall be
modified so as to make the
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advance
a nonrefundable payment to Executive and the repayment obligation null and
void.
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(iv)
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All
determinations under this Section 3(c) shall be made at the
expense of the Company by a nationally recognized public accounting firm
selected by the Company, and such determination shall be binding upon you
and the Company.
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(d) Time of Payment. The
Company’s obligation to make the payments provided for in Section 3(b)(i) and
(ii) (and any related payment under Section 3(c)) shall be subject to your
execution of a release, in the form attached as Exhibit A, which you have not
revoked, such actions to be completed by the end of any applicable revocation
period. If and only if such release has become legally effective, on
the business day immediately following the 52d day after your Date of
Termination, the Company shall pay the amount specified in Section 3(b)(i) and
(ii) in a lump sum. For purposes of compliance with Section 409A of
the Internal Revenue Code, the payments under Section 3(b)(i) and (ii) (and any
related payment under Section 3(c)) shall each be deemed to be separate
payments, and it is intended that the payment under Section 3(b)(i) and (ii)
(and any related payment under Section 3(c)) in each case shall be deemed first
to be a short-term deferral under Treasury Regulation § 1.409A-1(b)(4), and the
payment under Section 3(b)(i) (and any related payment under Section 3(c)) then
shall be deemed to be separation pay excluded from being a deferral of
compensation to the extent provided under Treasury Regulation §
1.409A-1(b)(9)(iii). If, however, (i) for any reason all or any
portion of the payment under Section 3(b)(i) or the payment under Section
3(b)(ii), or any payment under Section 3(c), is deemed to be a non-excluded
deferral of compensation under Treasury Regulation § 1.409A-1(b) payable based
upon your Termination, and (ii) any of the Company’s stock is publicly traded on
an established securities market or otherwise, and (iii) at the Date of
Termination you are a “key employee” (as defined in Code Section 416(i) without
regard to paragraph (5) thereof), then the affected portion of such payment
shall be made on the first business day that is on or after the date that is six
months after the date of your separation from service. Likewise, if
any other payment or benefit under this Agreement would be subject to a tax
penalty under Code Section 409A, such payment or benefit will be payable to you
only at the date specified in the preceding sentence if such delay would avoid
such tax penalty to you. You shall not be entitled to exercise any
influence on the time of any payment payable hereunder, including in any case in
which the permitted payment period would include portions of two different tax
years.
(e) Notice. During the
Protected Period, any purported termination of your employment by the Company or
by you shall be communicated by written Notice of Termination to the other party
hereto.
(f) Certain Definitions.
Except as otherwise indicated in this Agreement, all definitions in this Section
3(f) shall be applicable during the Protected Period only.
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(i)
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Cause. “Cause”
for Termination by the Company of your employment, during the Protected
Period, shall mean (A) willful misconduct, dishonesty, misappropriation,
breach of fiduciary duty or fraud by you with regard to the Company or any
of its assets or businesses; (B) your conviction or your pleading of nolo contendere with
regard to any felony or crime (for the purpose hereof, traffic violations
and misdemeanors shall not be deemed to be a crime); or (C) any material
breach by you of the provisions of this Agreement which is not cured
within 30 days after written notice to you of such breach from the Board
of Directors of the Company.
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(ii)
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Date of
Termination. “Date of Termination” shall mean the date specified in
the Notice of Termination which, in the case of a Termination by the
Company (other than a Termination for Cause), shall not be less than 30
days from the date such Notice of Termination is given and, in the case of
a Termination by you, shall not be less than 30 nor more than 60 days from
the date such Notice of Termination is given (except as otherwise provided
in Section 3(f)(iv)).
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(iii)
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Good Reason.
“Good Reason” for Termination of your employment will mean the occurrence,
without your written consent, of any one of the following, provided that,
except as provided in Section 3(f)(iv), you have given Notice of
Termination to the Company within 90 days after the initial existence of
the condition giving rise to your asserted Good Reason, and the Company
has failed to fully correct the Good Reason by your Date of Termination
(which must be at least 30 days after the Notice is given, except as
provided in Section 3(f)(iv)) specified in the Notice of Termination (such
correction by the Company having the effect of canceling such Notice and
the resulting Termination), and your separation from service occurs within
one year after the initial existence of circumstances constituting Good
Reason:
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(A) Except
as limited under Section 3(f)(iv), the assignment to you of any duties
inconsistent in any material adverse respect with your position, authority or
responsibilities immediately prior to the occurrence of the Change in Control or
any other material adverse change in such position, including authority or
responsibilities;
(B) A
material reduction by the Company in either (i) your annual base salary in
effect immediately prior to the Change in Control and as such base salary
thereafter may have been increased, (ii) your annual incentive (i.e., bonus, as
specified below), or (iii) your annual equity award (as specified
below). For this purpose, a reduction of $10,000 in amount or value,
on an annualized basis, of your base salary or annual equity award value, or of
these two elements in the aggregate, will be deemed "material" (other changes
may be material in the particular circumstances). A material
reduction in your annual incentive will have occurred if the amount actually
paid to you for any year all or part of which is in the Protected Period
(including the year in which the Change in Control occurs) is reduced to a level
less than 80% of your annual incentive actually paid for performance in the
latest full fiscal year before the Change in Control. A material
reduction in your annual equity award will be based on the extent to which the
aggregate grant date value of equity awards in a given fiscal year during the
Protected Period is reduced from the grant date value of the latest annual
equity award grant to you from the Company before the Change in Control (this
grant may have occurred in the same fiscal year as the Change in
Control). Annual equity award shall be deemed to have a
value determined in a manner consistent with the Company's (or then parent
company's) internal valuation method for such awards used at the time of
grant. It shall not constitute a material reduction in the annual
equity grant for the Company to change the form of such award to either equity
of the surviving parent corporation or cash, provided the value thereof is not
materially reduced; or
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(C) The
relocation of the principal place of your employment to a location more than
fifty (50) miles from the location of such place of employment on the date of
this Agreement; except for required travel on the Company’s business to an
extent substantially consistent with your business travel obligations prior to
the Change in Control.
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(iv)
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Limitation
on Good Reason. If an event occurs that otherwise would
constitute Good Reason under Section 3(f)(iii)(A) (material adverse change
in your position or duties), such event shall not constitute Good Reason
during the one-year period immediately following the Change in Control,
provided that during such one-year period both of the following conditions
(the "Good Reason Delay") continue to be
met:
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(A)
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After
the Change in Control, Xxxx Xxxxxxxx continues to serve as the
most senior executive officer of either the Company, a parent company of
the Company, or a business unit or subsidiary of the surviving corporation
that (in the case of any of these) has oversight over substantially all of
the business operations that were businesses of the Company immediately
prior to the Change in Control, with Xx. Xxxxxxxx actually performing
substantially all of the customary duties of the most senior executive
officer in such position (the "Continuing Senior
Officer");
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(B)
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Your
change in position or duties that otherwise would constitute Good Reason
under Section 3(f)(iii)(A) results from your assignment to an
executive-level position, with an executive title, and with
full-time substantive duties and responsibilities of a nature similar to
your prior duties and responsibilities, and with such position, title and
duties and responsibilities of equal or higher rank than your position,
title and duties and responsibilities before the Change in Control, and
with you either reporting to Xx. Xxxxxxxx in his capacity as Continuing
Senior Officer or reporting to the officer to whom you were reporting at
the time of the Change in Control which officer himself or herself reports
to Xx. Xxxxxxxx in his capacity as Continuing Senior
Officer.
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In the
event of a Good Reason Delay, Good Reason will arise, if not previously cured,
at the date one year after the Change in Control or earlier at any time at which
the condition specified in Section 3(f)(iii)(A) continues and either of the
conditions specified in Section 3(f)(iv)(A) or (B) cease to be met, in which
case you must give the Company notice not later than 90 days thereafter that
Good Reason has arisen (or an announced event will occur that will trigger such
Good Reason) which has terminated (or will terminate) the Good Reason Delay and,
if the Company has not cured the Good Reason within 30 days after receipt of
such notice (or cancelled an event yet to occur if notice precedes such event by
at least 30 days, effectively preventing or curing the Good Reason), then, at
the end of such cure period (or if later at the time of occurrence of the event
triggering Good Reason), Good Reason shall exist. In this case, your
separate Notice of Termination (if you elect to Terminate for Good Reason) may
be given up to one year after the Good Reason arose (but not later than the 30
days before the end of the Protected Period), with such Notice of Termination to
specify a Date of Termination not earlier than 30 days after the date of Notice
(subject to the timing rule set out below in the case of Xx. Xxxxxxxx'x
death). The period for notice that Good Reason has (or will) occur
(i.e., that the Good Reason Delay has
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ended or
will end) may overlap with the period between your Notice of Termination and the
specified Date of Termination, so long as in all cases the Company has at least
30 days to cure Good Reason. In addition, Termination for Good Reason
may occur during the Good Reason Delay period if Good Reason separately arises
under Section 3(f)(iii)(B) and/or (C) (subject to all of the applicable
conditions of Section 3(f)(iii)). Termination for Good Reason in any
case in which the Good Reason Delay applied must occur during the Protected
Period. If Xx. Xxxxxxxx ceases to be the Continuing Senior Officer due to his
death, the Notice of Termination must specify a Date of Termination no earlier
than the earlier of the first anniversary of the Change in Control or the date
at least six months after Xx. Xxxxxxxx'x death.
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(v)
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Notice of
Termination. “Notice of Termination” shall mean notice indicating
the specific termination provision in this Agreement relied upon and
setting forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the provision so
indicated.
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(vi)
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Termination. “Termination”
means an event by which your employment relationship with the Company and
all subsidiaries has ended, provided that, with respect to any payment
hereunder which is deemed to be a non-excluded deferral of compensation
under Treasury Regulation § 1.409A-1(b), a Termination will occur at the
time at which you have had a “separation from service” within the meaning
of Treasury Regulation §
1.409A-1(h).
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(g) Severance Following the
Protected Period. If you remain employed by the Company (which
includes any affiliate of the Company) after the Protected Period (and have not
given Notice of Termination under Section 3(f)(iv) based on Xx. Xxxxxxxx'x
death), in the event that during the "Extended Severance Period" (as defined
below)following the Protected Period your employment is Terminated by the
Company not for Cause or Terminated by you for Modified Good Reason (as defined
in this Section 3(g)), you will be entitled to the payments and benefits under
Section 3(b) except that severance under Section 3(b)(i) will be equal to 1.0
times Annual Compensation. For purposes of this Section 3(g),
the "Extended Severance Period" means the period from the end of the Protected
Period until the close of business on the first anniversary of the end of the
Protected Period, provided that the
Extended Severance Period will be automatically renewed for successive one-year
periods unless either party hereto gives written notice of non-renewal to the
other party at least ninety (90) days prior to the expiration of the then
current Extended Severance Period. For purposes of this Section 3(g),
"Modified Good Reason" shall mean the occurrence, without your written consent,
of either (A) the assignment to you of any duties inconsistent in any material
adverse respect with your position, authority or responsibilities 60 days before
the end of the Protected Period or any other material adverse change in such
position, including authority or responsibilities; (B) the event specified in
Section 3(f)(iii)(B); or (C) the event specified in Section 3(f)(iii)(C);
provided that, in each case, you have given Notice of Termination to the Company
within 90 days after the initial existence of the condition giving rise to your
asserted Modified Good Reason, and the Company has failed to fully correct the
Modified Good Reason by your Date of Termination (which must be at least 30 days
after the Notice is given) specified in the Notice of Termination (such
correction by the Company having the effect of canceling such Notice and the
resulting Termination), and your separation from service occurs within one year
after the initial existence of circumstances constituting Modified Good
Reason. Other provisions of this Agreement applicable to Section 3(b)
(for example, Section 3(d)) shall apply to the payments and benefits under this
Section 3(g) as well. If you remain employed as specified in this
Section 3(g), the obligations of the Company
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under
this Agreement shall continue for the applicable Extended Severance Period after
the end of the Protected Period, without regard to provisions specifying the end
of the Term.
4. Mitigation.
You will
not be required to mitigate the amount of payments provided for under this
Agreement by seeking other employment or otherwise, nor shall the amount of
payments provided for under this Agreement be reduced by any compensation earned
by you as the result of employment by another employer, by retirement benefits,
by offset against any amount claimed to be owed by you to the Company, or
otherwise.
5. Covenants for Protection of
Company’s Business. In consideration for the payments and benefits
provided by the Company under this Agreement, by your execution of this
agreement you agree as follows:
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(i)
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You
agree that you will not (except on behalf of the Company) during your
employment with the Company and during the period of 12 months thereafter
(the "Restrictive Period") employ or retain, solicit the employment or
retention of, or knowingly cause or encourage any entity to retain or
solicit the employment or retention of, any person who is an employee of
the Company or was an employee of the Company at any time during the
period commencing 12 months prior to the termination of your employment
with the Company. After your Termination of Employment: (A) You
will refrain from disparaging, whether orally, in writing or in other
media, the Company, its affiliates, the officers, directors and employees
of each of them, and the products and services of each of them, and (B)
the Company will not disparage you or otherwise comment upon your
employment performance other than as may be required by law or as
requested by you.
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(ii)
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You
will not at any time, directly or indirectly, without the Company's prior
written consent, disclose to any third party or use (except as authorized
in the regular course of the Company's business or in your performance of
your responsibilities for the Company) any confidential, proprietary or
trade secret information that was either acquired by you during your
employment with the Company or thereafter, including, without limitation,
sales and marketing information, information relating to existing or
prospective customers and markets, business opportunities, and financial,
technical and other data (collectively, the "Confidential
Information"). After termination of your employment with the
Company for any reason and upon the written request of the Company, you
shall promptly return to the Company all originals and/or copies of
written or recorded material (regardless of the medium) containing or
reflecting any Confidential Information and shall promptly confirm in
writing to the Company that such action has been
taken. Notwithstanding the foregoing, the following shall not
constitute Confidential Information: (A) Information that is
already in the public domain at the time of its disclosure to you; (B)
Information that, after its disclosure to you, becomes part of the public
domain by publication or otherwise other than through your act; and (C)
Information that you received from a third party having the right to make
such disclosure without restriction on disclosure or use
thereof.
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10
6. Prior
Acknowledgment. In connection with a Termination which entitles you
to compensation pursuant to Section 3(b), your agreement not to voluntarily
terminate your employment with the Company or any of its affiliates, which is
set forth in any Acknowledgement previously executed by you as a condition of
payment of an annual incentive award, shall terminate, shall no longer be a
condition of your right to retain such annual incentive award, and shall be of
no further force or effect.
7. Miscellaneous.
(a) Successors. The
Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, “Company” shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(b) Binding Agreement.
This Agreement shall inure to the benefit of and be enforceable by you and your
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. In the event of your death, all amounts
otherwise payable to you hereunder shall, unless otherwise provided herein, be
paid in accordance with the terms of this Agreement to your devisee, legatee or
other designee or, if there is no such designee, to your estate.
(c) Notice. Notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when (i) personally delivered or (ii)
mailed by United States certified or registered mail, return receipt requested,
postage prepaid, addressed to the respective addresses set forth on the first
page of this Agreement; provided that all
notice to the Company shall be directed to the attention of the Board with a
copy to the Chief Executive Officer of the Company, or to such other address as
either party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon
receipt.
(d) Modifications. No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by you and
such officer as may be designated by the Board. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the time or at any prior or subsequent time.
(e) Governing Law. THE
VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS
OF LAW PRINCIPLES.
(f) Tax Withholding. Any
payments provided for hereunder shall be paid net of any applicable withholding
required under federal, state or local law.
(g) Surviving
Obligations. The obligations of the Company and your obligations under
this Agreement shall survive the expiration of this Agreement to the extent
necessary to give effect to this Agreement.
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(h) Validity. The
invalidity or unenforceability of any provision 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.
(i) Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the same
instrument.
(j) Entire Agreement.
This Agreement sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein and during the Term supersedes the
provisions of all prior agreements (including any prior Change in Control
Agreement between the parties), promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereof with respect to the
subject matter contained herein. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
Notwithstanding anything to the contrary in this Agreement, the procedural
provisions of this Agreement shall apply to all benefits payable as a result of
a Change in Control (or other change in control) under any employee benefit
plan, agreement, program, policy or arrangement of the Company.
If this
letter sets forth our agreement on the subject matter hereof, kindly sign and
return to the Company the enclosed copy of this letter, which will then
constitute our agreement on this subject.
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COMTECH
TELECOMMUNICATIONS CORP.
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By:
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[Name]
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[Title]
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Agreed
to this __ day
of
_________, 2008.
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____________________________
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«First_Name»
«Last_Name»
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12
Exhibit
A
General
Release
For good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, I, for myself and my
successors, assigns, heirs and representatives (each, a "Releasing Party"),
hereby release and forever discharge Comtech Telecommunications
Corp. (the "Company"), its stockholders, officers, directors,
employees, agents and attorneys, and their respective successors, assigns, heirs
and representatives (each, a "Released Party"), individually and collectively,
from any and all claims, demands, causes of action, liabilities or obligations,
known or unknown, pending or not pending, liquidated or not liquidated, of every
kind and nature whatsoever (collectively, the "Released Claims") which the
Releasing Party has, has had or may have against any one or more of the Released
Parties arising out of, based upon or in any way, directly or indirectly,
related to the Company's business, my employment with the Company or the
termination of such employment; provided, however, that this
General Release shall have no effect whatsoever upon: (a) the
Company's obligations, if any, to pay severance compensation pursuant to the
Change in Control Agreement between the undersigned and the Company, dated
September 16, 2008 (the “CIC Agreement”) or the rights of the undersigned to
enforce such obligations; (b) any and all obligations of the Released Parties to
defend, indemnify, hold harmless or reimburse the undersigned under the
Indemnification Agreement between the Company and the undersigned, and/or under
applicable law and/or under the respective charters and by-laws of the Released
Parties, and/or pursuant to insurance policies, if any, for acts or omissions in
the undersigned’s capacity as a director, officer and/or employee thereof; and
(c) any and all rights the undersigned may have to vested or accrued benefits or
entitlements under and in accordance with any applicable plan, agreement,
program, award, policy or arrangement of a Released Party..
The Released Claims include, without
limitation, (a) all claims arising out of or relating to breach of contract, the
Fair Labor Standards Act, the Age Discrimination in Employment Act, Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1866, the National Labor
Relations Act, the Americans with Disabilities Act, the Employee Retirement
Income Security Act and/or any other federal, state or local statute, law,
ordinance, regulation or order as the same may be amended or supplemented from
time to time, (b) all claims for back pay, lost benefits, reinstatement,
liquidated damages, punitive damages, and damages on account of any alleged
personal, physical or emotional injury, and (c) all claims for attorneys' fees
and costs.
I agree that I am voluntarily executing
this General Release. I acknowledge that I
am knowingly and voluntarily waiving and releasing any rights I may have under
the Age Discrimination in Employment Act of 1967 and that the consideration
given for the waiver and release is in addition to anything of value to which I
was already entitled. I further acknowledge that I have been advised
by this writing, as required by the Age Discrimination in Employment Act of
1967, that: (a) my waiver and release specified herein does not
apply to any rights or claims that may arise after the date I sign this General
Release or my rights with respect to severance compensation, if any, payable to
me pursuant to the CIC Agreement; (b) I have the right to consult with an
attorney prior to signing this General Release; (c) I have twenty-one (21)
days to consider this General Release (although I may choose to sign it
earlier); (d) I have seven (7) days after I sign this General Release to
revoke it; and (e) this General Release will not be effective until the
date on which the revocation period has expired, which will be the eighth day
after I sign this General Release, assuming I have returned it to the Company by
such date.
Dated:
___________________________ ___________________________
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