EMPLOYMENT AGREEMENT
Exhibit 10.2
THIS EMPLOYMENT AGREEMENT (the “Agreement”), dated as of December 8, 2006, is by and between
ARRIS GROUP, INC., a Delaware corporation (the “Company”), and Xxxxx X. Xxxxx (“Executive”).
WHEREAS, Executive and the Company are parties to a previous employment agreement dated as of
August 5, 2001 (the “Previous Agreement”);
WHEREAS, Executive and the Company desire to replace the Previous Agreement; and
WHEREAS, Executive and the Company want to enter into a written agreement providing for the
terms of Executive’s employment by the Company.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual covenants set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Employment. Executive agrees to enter into the continued employment of the
Company, and the Company agrees to employ Executive, on the terms and conditions set forth in this
Agreement. Executive agrees during the term of this Agreement to devote substantially all of his
business time, efforts, skills and abilities to the performance of his duties as stated in this
Agreement and to the furtherance of the Company’s business.
Executive’s initial job title will be President, Broadband and his duties will be those as are
designated by the Chief Executive Officer of the Company. Executive further agrees to serve,
without additional compensation, as an officer or director, or both, of any subsidiary, division or
affiliate of the Company or any other entity in which the Company holds an equity interest,
provided, however, that (a) the Company shall indemnify Executive from liabilities in connection
with serving in any such position to the same extent as his indemnification rights pursuant to the
Company’s Certificate of Incorporation, By-laws and applicable Delaware law, and (b) such other
position shall not materially detract from the responsibilities of Executive pursuant to this
Section 1 or his ability to perform such responsibilities.
2. Compensation.
(a) Base Salary. During the term of Executive’s employment with the Company pursuant
to this Agreement, the Company shall pay to Executive as compensation for his services an annual
base salary of not less than $305,000.00 (“Base Salary”). Executive’s Base Salary will be
payable in arrears in accordance with the Company’s normal payroll procedures and will be reviewed
annually and subject to upward adjustment at the discretion of the Chief Executive Officer and
Compensation Committee, but will not be lowered except in connection with reductions applied to all
executive officers.
(b) Incentive Bonus. During the term of Executive’s employment with the Company
pursuant to this Agreement, Executive’s incentive compensation program shall be determined by the
Company in its discretion with a target bonus equal to 60% of Base Salary, and allowing for payment
of up to 150% of target with respect to calendar year 2006 and 200% of target with respect to
calendar year 2007 and thereafter.
(c) Executive Perquisites. During the term of Executive’s employment with the Company
pursuant to this Agreement, Executive shall be entitled to receive such executive perquisites and
fringe benefits as are provided to the executives in comparable positions and their families under
any of the Company’s plans and/or programs in effect from time to time and such other benefits as
are customarily available to executives of the Company and their families, including without
limitation vacations and life, medical and disability insurance.
(d) Tax Withholding. The Company has the right to deduct from any compensation
payable to Executive under this Agreement social security (FICA) taxes and all federal, state,
municipal or other such taxes or charges as may now be in effect or that may hereafter be enacted
or required.
(e) Expense Reimbursements. The Company shall pay or reimburse Executive for all
reasonable business expenses incurred or paid by Executive in the course of performing his duties
hereunder, including but not limited to reasonable travel expenses for Executive. As a condition
to such payment or reimbursement, however, Executive shall maintain and provide to the Company
reasonable documentation and receipts for such expenses.
3. Term. Unless sooner terminated pursuant to Section 4 of this Agreement, and
subject to the provisions of Section 5 hereof, the term of this Agreement shall commence as of the
date hereof and shall continue for a period of one year. Subject to Section 6 hereof, the term
automatically shall be extended by one day for each day of employment hereunder.
4. Termination. Notwithstanding the provisions of Section 3 hereof, but subject to
the provisions of Section 5 hereof, Executive’s employment under this Agreement shall terminate as
follows:
(a) Death. Executive’s employment shall terminate upon the death of Executive;
provided, however, that the Company shall continue to pay (in accordance with its normal payroll
procedures) the Base Salary to Executive’s estate for a period of three months after the date of
Executive’s death.
(b) Termination for Cause. The Company may terminate Executive’s employment at any
time for “Cause” (as hereinafter defined) by delivering a written termination notice to Executive.
For purposes of this Agreement, “Cause” shall mean any of: (i) Executive’s conviction of a felony
or a crime involving moral turpitude; (ii) Executive’s commission of an act constituting fraud,
deceit or material misrepresentation with respect to the Company; (iii)
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Executive’s embezzlement of
funds or assets from the Company; (iv) Executive’s addiction to any
alcoholic, controlled or illegal substance or drug; (v) Executive’s commission of any act or
omission which would give the Company the right to terminate Executive’s employment under
applicable law; or (vi) Executive’s failure to correct or cure any material breach of or default
under this Agreement within ten days after receiving written notice of such breach or default from
the Company.
(c) Termination Without Cause. The Company may terminate Executive’s employment at
any time by delivering a written termination notice to Executive.
(d) Termination by Executive. Executive may terminate his employment at any time by
delivering ninety days prior written notice to the Company; provided, however, that the terms,
conditions and benefits specified in Section 5 hereof shall apply or be payable to Executive only
if such termination occurs as a result of a material breach by the Company of any provision of this
Agreement.
(e) Termination Following Disability. In the event Executive becomes mentally or
physically impaired or disabled and is unable to perform his material duties and responsibilities
hereunder for a period of at least ninety days in the aggregate during any one hundred twenty
consecutive day period, the Company may terminate Executive’s employment by delivering a written
termination notice to Executive. Notwithstanding the foregoing, Executive shall continue to
receive his full salary and benefits under this Agreement for a period of six months after the
effective date of such termination.
(f) Payments. Following any expiration or termination of this Agreement or
Executive’s employment hereunder, and in addition to any amounts owed pursuant to Section 5 hereof,
the Company shall pay to Executive all amounts earned by Executive hereunder prior to the date of
such expiration or termination.
5. Certain Termination Benefits. Subject to Section 6(a) hereof, in the event (i) the
Company terminates Executive’s employment without cause pursuant to Section 4(c) or (ii) Executive
terminates his employment pursuant to Section 4(d) after a material breach by the Company (which
the Company fails to cure within ten days after written notice of such breach from Executive):
(a) Base Salary and Bonus. The Company shall continue to pay to Executive his Base
Salary (as in effect as of the date of such termination) and bonus based upon the assumption that
Executive would have fulfilled the requirements to earn his target bonus that would have been
payable hereunder to Executive from the date of such termination for a period of twelve months
following the termination (and a pro rata portion for any partial year).
(b) Stock. Subject to Section 10 hereof, on and as of the effective date of the
termination of employment, all of Executive’s outstanding stock options and restricted stock grants
under the Company’s stock option and other benefit plans shall immediately vest.
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(c) Life Insurance. The Company shall continue to provide Executive with group and
additional life insurance coverage until the expiration of the Benefit Period.
(d) Medical Insurance. The Company shall continue to provide Executive and his
family with group medical insurance coverage under the Company’s Medical Plans (as the same may
change from time to time) or other substantially similar health insurance until the expiration of
the Benefit Period.
(e) Group Disability. The Company shall continue to provide Executive coverage under
the Company’s group disability plan until the expiration of the benefit period.
(f) Section 409A. It is expressly contemplated by the parties that this Agreement
will conform to, and be interpreted to comply with, Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”). Unless expressly provided otherwise, all of the payments due to
Executive under this Section 5 will be made within fifteen (15) days following the date of
termination; provided, however, that if under Section 409A of the Code, such payments must be
delayed to conform with the applicable tax rules, the Company will defer any such payment until no
later than one day following the first date upon which such payment may be made without incurring
the tax imposed thereunder; provided, further, that if Executive incurs any additional tax,
interest or penalties under Section 409A of the Code, the Company will pay Executive an additional
amount so that, after all taxes on such amount, Executive has an amount equal to such additional
tax.
(g) Offset. Any fringe benefits received by Executive in connection with any other
employment that are reasonably comparable, but not necessarily as beneficial, to Executive as the
fringe benefits then being provided by the Company pursuant to this Section 5, shall be deemed to
be the equivalent of, and shall terminate the Company’s responsibility to continue providing, the
fringe benefits then being provided by the Company pursuant to this Section 5. The Company
acknowledges that if Executive’s employment with the Company is terminated, Executive shall have no
duty to mitigate damages.
(h) General Release. Acceptance by Executive of any amounts pursuant to this Section
5 shall constitute a full and complete release by Executive of any and all claims Executive may
have against the Company, its officers, directors and affiliates, including, but not limited to,
claims he might have relating to Executive’s cessation of employment with the Company; provided,
however, that there may properly be excluded from the scope of such general release the following:
(i) claims that Executive may have against the Company for reimbursement of
ordinary and necessary business expenses incurred by him during the course of his
employment;
(ii) claims that may be made by the Executive for payment of Base Salary,
fringe benefits or stock options properly due to him; or
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(iii) claims respecting matters for which the Executive is entitled to be
indemnified under the Company’s Certificate of Incorporation or Bylaws,
respecting third party claims asserted or third party litigation pending or
threatened against the Executive.
Notwithstanding the foregoing, as a condition to the payment to Executive of any amounts pursuant
to this Section 5, Executive shall execute and deliver to the Company a release in the customary
form then being used by the Company, which may include non-disparagement and confidentiality
agreements. In exchange for such release, the Company shall, if Executive’s employment is
terminated without Cause, provide a release to Executive, but only with respect to claims against
Executive which are actually known to the Company as of the time of such termination.
6. Special Employee Services.
(a) Commencing on the day following Executive’s normal retirement date, unless the Company and
Executive agree in writing to defer his change in status, either indefinitely or for a specific
period, Executive shall assume the status of a special employee to the Company and shall have and
perform such responsibilities and receive such compensation as the Company and Executive shall
agree. This status shall continue until May 30, 2013, at which time without any further action on
the part of the Company or Executive, it shall terminate.
(b) During the period that Executive serves as a special employee, Sections 2 (c) with respect
to medical coverage only for employee and his spouse (but excluding life, disability and other
fringe benefits or perquisites),2(e),8,9,10,11,12,13,and 14 hereof shall remain in effect, and for
purposes of such sections, and for the avoidance of doubt, for purposes of continued vesting of
restricted shares and options as well, Executive shall be treated as a full-time employee.
Notwithstanding the foregoing, the Company shall have no liability to Executive (or any other
person) for its failure to provide medical coverage under its then current group insurance to the
extent the Company provides Executive with reasonably comparable insurance.
7. Effect of Change in Control.
(a) If within one year following a “Change of Control” (as hereinafter defined), Executive
terminates his employment with the Company for Good Reason (as hereinafter defined) or the Company
terminates Executive’s employment for any reason other than Cause, death or disability, the Company
shall pay to Executive: (1) an amount equal to one times the Executive’s Base Salary as of the date
of termination; (2) an amount equal to one times the average annual cash bonus paid to Executive
for the two fiscal years immediately preceding the date of termination (and a pro rata portion for
any partial year); (3) all benefits under the Company’s various benefit plans, including group
healthcare, dental and life, for the period equal to twelve months from the date of termination;
and (4) subject to Section 10 hereof, on and as of the effective date of the termination of
employment, all of Executive’s outstanding stock options
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and restricted stock grants under the
Company’s stock option and other benefit plans shall immediately vest.
(b) “Change of Control” shall mean the date as of which: (i) there shall be consummated (1)
any consolidation or merger of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which shares of the Company’s common stock would be converted into cash,
securities or other property, other than a merger of the Company in which the holders of the
Company’s common stock immediately prior to the merger have the same proportionate ownership of
common stock of the surviving corporation immediately after the merger, or (2) any sale, lease,
exchange or other transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or (ii) the stockholders of the Company approve
any plan or proposal for the liquidation or dissolution of the Company; or (iii) any person ( as
such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)), shall become the beneficial owner (within the meaning of Rule 13d-3 under
the Exchange Act) of 30% of the Company’s outstanding common stock; or (iv) during any period of
two consecutive years, individuals who at the beginning of such period constitute the entire board
of directors of the Company shall cease for any reason to constitute a majority thereof unless the
election, or the nomination for election by the Company’s stockholders, of each new director was
approved by a vote of at least two-thirds of the directors then still in office who were directors
at the beginning of the period.
(c) “Good Reason” shall mean any of the following actions taken by the Company without the
Executive’s written consent after a Change of Control:
(i) the assignment to the Executive by the Company of duties inconsistent with,
or the reduction of the powers and functions associated with, the Executive’s
position, duties, responsibilities and status with the Company immediately prior to
a Change of Control or Potential Change of Control (as defined below), or an adverse
change in Executive’s titles or offices as in effect immediately prior to a Change
of Control or Potential Change of Control, or any removal of the Executive from or
any failure to re-elect Executive to any of such positions, except in connection
with the termination of his employment for Disability or Cause or as a result of
Executive’s death except to the extent that a change in duties relates to
the elimination of responsibilities attendant to the Company’s no longer being a
publicly traded company;
(ii) A reduction by the Company in the Executive’s Base Salary as in effect on
the date of a Change of Control or Potential Change of Control, or as the same may
be increased from time to time during the term of his Agreement;
(iii) The Company shall require the Executive to be based anywhere other than
at the Company’s principal executive offices or the location where the Executive is
based on the date of a Change of Control or Potential Change of Control, or if
Executive agrees to such relocation, the Company fails to reimburse
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the Executive for moving and all other expenses reasonably incurred with such move;
(iv) The Company shall fail to continue in effect any Company-sponsored plan or
benefit that is in effect on the date of a Change of Control or Potential Change of
Control, that provides (A) incentive or bonus compensation, (B) fringe benefits such
as vacation, medical benefits, life insurance and accident insurance, (C)
reimbursement for reasonable expenses incurred by the Executive in connection with
the performance of duties with the Company, or (D) pension benefits such as a Code
Section 401(k) plan or the Company’s nonqualified defined benefit plan,
except to the extent that such plans taken as a whole are replaced with
substantially comparable plans;
(vi) Any material breach by the Company of any provision of this Agreement; and
(vii) Any failure by the Company to obtain the assumption of this Agreement by
any successor or assign of the Company effected in accordance with the provisions of
Section 7.
(d) “Potential Change of Control” shall mean the date as of which (1) the Company enters into
an agreement the consummation of which, or the approval by shareholders of which, would constitute
a Change of Control; (ii) proxies for the election of Directors of the Company are solicited by
anyone other than the Company; (iii) any person (including, but not limited to, any individual,
partnership, joint venture, corporation, association or trust) publicly announces an intention to
take or to consider taking actions which, if consummated, would constitute a Change of Control; or
(iv) any other event occurs which is deemed to be a Potential Change of Control by the Board and
the Board adopts a resolution to the effect that a Potential Change of Control has occurred.
(e) In the event that (i) Executive would otherwise be entitled to the compensation and
benefits described in Section 6(a) hereof (“Compensation Payments”), and (ii) the Company
determines, based upon the advice of tax counsel selected by the Company’s independent auditors and
acceptable to Executive, that, as a result of such Compensation Payments and any other benefits or
payments required to be taken into account under Code Section 280G(b)(2) (“Parachute Payments”),
any of such Parachute Payments would be reportable by the Company as “excess parachute payments”,
such Compensation Payments shall be reduced to the extent necessary to cause Executive’s Parachute
Payments to equal 2.99 times the “base amount” as defined in Code Section 280G(b)(3) with respect
to such Executive. However, such reduction in the Compensation Payments shall be made only if, in
the opinion of such tax counsel, it would result in a larger Parachute Payment to the Executive
than payment of the unreduced Parachute Payments after deduction of tax imposed on and payable by
the Executive under Section 4999 of the Code (“Excise Tax”). The value of any non-cash benefits or
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any deferred payment or benefit for purposes of this paragraph shall be determined by the Company’s
independent auditors.
(f) The parties hereto agree that the payments provided under Section 6(a) above, as the case
may be, are reasonable compensation in light of Executive’s services rendered
to the Company and that neither party shall contest the payment of such benefits as
constituting an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.
(g) Unless the Company determines that any Parachute Payments made hereunder must be reported
as “excess parachute payments” in accordance with Section 6(e) above, neither party shall file any
return taking the position that the payment of such benefits constitutes an “excess parachute
payment” within the meaning of Section 280G(b)(1) of the Code.
8. Non-Competition. Executive agrees that during the term of this Agreement and for a
period of nine months from the date of the termination of Executive’s employment with the Company
pursuant to Sections 4(b), 4(c), 4(d), 4(e) or 6 herein or for any other reason that results in the
Executive being entitled to the benefits described in Section 5, he will not, directly or
indirectly, compete with the Company by providing to any company that is in a “Competing Business”
services substantially similar to the services provided by Executive at the time of termination.
Competing Business shall be defined as any business that engages, in whole or in part, in the
manufacture, development or sale of broadband communication equipment for broadband communications
architectures in the United States, and Executive’s employment function or affiliation is directly
or indirectly in such business.
9. Nonsolicitation of Employees. For a period of two years after the termination or
cessation of his employment with the Company for any reason whatsoever, Executive shall not, on his
own behalf or on behalf of any other person, partnership, association, corporation, or other
entity, solicit or in any manner attempt to influence or induce any employee of the Company or its
subsidiaries or affiliates (known by the Executive to be such) to leave the employment of the
Company or its subsidiaries or affiliates, nor shall he use or disclose to any person, partnership,
association, corporation or other entity any information obtained while an employee of the Company
concerning the names and addresses of the Company’s employees.
10. Nondisclosure of Trade Secrets. During the term of this Agreement, Executive will
have access to and become familiar with various trade secrets and proprietary and confidential
information of the Company, its subsidiaries and affiliates, including, but not limited to,
processes, designs, computer programs, compilations of information, records, sales procedures,
customer requirements, pricing techniques, product plans, marketing plans, strategic plans,
customer lists, methods of doing business and other confidential information (collectively,
referred to as “Trade Secrets”) which are owned by the Company, its subsidiaries and/or affiliates
and regularly used in the operation of its business, and as to which the Company, its subsidiaries
and/or affiliates take precautions to prevent dissemination to persons other than certain
directors, officers and employees. Executive acknowledges and agrees that the Trade Secrets (1)
are secret
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and not known in the industry; (2) give the Company or its subsidiaries or affiliates an
advantage over competitors who do not know or use the Trade Secrets; (3) are of such value and
nature as to make it reasonable and necessary to protect and preserve the confidentiality and
secrecy of the Trade Secrets; and (4) are valuable, special and unique assets of the Company or its
subsidiaries or affiliates, the disclosure of which could cause substantial injury and loss of
profits and goodwill to the Company or its subsidiaries or affiliates. Executive may not use in
any way or disclose any of the Trade Secrets, directly or indirectly, either during the term of
this Agreement or at any time thereafter, except as required in the course of his employment under this Agreement, if
required in connection with a judicial or administrative proceeding, or if the information becomes
public knowledge other than as a result of an unauthorized disclosure by the Executive. All files,
records, documents, information, data and similar items relating to the business of the Company,
whether prepared by Executive or otherwise coming into his possession, will remain the exclusive
property of the Company and may not be removed from the premises of the Company under any
circumstances without the prior written consent of the Board (except in the ordinary course of
business during Executive’s period of active employment under this Agreement), and in any event
must be promptly delivered to the Company upon termination of Executive’s employment with the
Company. Executive agrees that upon his receipt of any subpoena, process or other request to
produce or divulge, directly or indirectly, any Trade Secrets to any entity, agency, tribunal or
person, Executive shall timely notify and promptly hand deliver a copy of the subpoena, process or
other request to the Board. For this purpose, Executive irrevocably nominates and appoints the
Company (including any attorney retained by the Company), as his true and lawful attorney-in-fact,
to act in Executive’s name, place and stead to perform any act that Executive might perform to
defend and protect against any disclosure of any Trade Secrets.
11. Return of Profits. In the event that Executive violates any of the provisions of
Sections 8,9 or 10 hereof or fails to provide the notice required by Section 4(d) hereof, the
Company shall be entitled to receive from Executive the profits, if any, received by Executive upon
exercise of any Company granted stock options or stock appreciation rights or upon lapse of the
restrictions on any grant of restricted stock to the extent such options or rights were exercised,
or such restrictions lapsed, subsequent to six months prior to the termination of Executive’s
employment.
12. Severability. The parties hereto intend all provisions of Sections 7, 8, 9 and 10
hereof to be enforced to the fullest extent permitted by law. Accordingly, should a court of
competent jurisdiction determine that the scope of any provision of Sections 7, 8, 9 or 10 hereof
is too broad to be enforced as written, the parties intend that the court reform the provision to
such narrower scope as it determines to be reasonable and enforceable. In addition, however,
Executive agrees that the nonsolicitation and nondisclosure agreements set forth above each
constitute separate agreements independently supported by good and adequate consideration shall be
severable from the other provisions of, and shall survive, this Agreement. The existence of any
claim or cause of action of Executive against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of the covenants of
Executive contained in the nonsolicitation and nondisclosure agreements. If any
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provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision never constituted a
part of this Agreement; and the remaining provisions of this Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision,
there shall be added as part of this Agreement, a provision as similar in its terms to such
illegal, invalid or enforceable provision as may be possible and be legal, valid and enforceable.
13. Arbitration — Exclusive Remedy.
(a) The parties agree that the exclusive remedy or method of resolving all disputes or
questions arising out of or relating to this Agreement shall be arbitration. Arbitration shall be
held in Atlanta, Georgia by three arbitrators, one to be appointed by the Company, a second to be
appointed by Executive, and a third to be appointed by those two arbitrators. The third arbitrator
shall act as chairman. Any arbitration may be initiated by either party by written notice
(“Arbitration Notice”) to the other party specifying the subject of the requested arbitration and
appointing that party’s arbitrator.
(b) If (i) the non-initiating party fails to appoint an arbitrator by written notice to the
initiating party within ten days after the Arbitration Notice, or (ii) the two arbitrators
appointed by the parties fail to appoint a third arbitrator within ten days after the date of the
appointment of the second arbitrator, then the American Arbitration Association, upon application
of the initiating party, shall appoint an arbitrator to fill that position.
(c) The arbitration proceeding shall be conducted in accordance with the rules of the American
Arbitration Association. A determination or award made or approved by at least two of the
arbitrators shall be the valid and binding action of the arbitrators. The costs of arbitration
(exclusive of the expense of a party in obtaining and presenting evidence and attending the
arbitration and of the fees and expenses of legal counsel to a party, all of which shall be borne
by that party) shall be borne by the Company only if Executive receives substantially the relief
sought by him in the arbitration, whether by settlement, award or judgment; otherwise, the costs
shall be borne equally between the parties. The arbitration determination or award shall be final
and conclusive on the parties, and judgment upon such award may be entered and enforced in any
court of competent jurisdiction.
14. Miscellaneous.
(a) Notices. Any notices, consents, demands, requests, approvals and other
communications to be given under this Agreement by either party to the other must be in writing and
must be either (i) personally delivered, (ii) mailed by registered or certified mail, postage
prepaid with return receipt requested, (iii) delivered by overnight express delivery service or
same-day local courier service, or (iv) delivered by telex or facsimile transmission, to the
address
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set forth below, or to such other address as may be designated by the parties from time to
time in accordance with this Section 12(a):
| If to the Company: | Arris Group, Inc. 0000 Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxx 00000 Attention: Xxxxxxxx X. Xxxxxxxx |
| If to Executive: | Xxxxx X. Xxxxx 00000 Xxxxxxxx Xxxxx Xxxxxxx, XX 00000 |
Notices delivered personally or by overnight express delivery service or by local courier
service are deemed given as of actual receipt. Mailed notices are deemed given three business days
after mailing. Notices delivered by telex or facsimile transmission are deemed given upon receipt
by the sender of the answer back (in the case of a telex) or transmission confirmation (in the case
of a facsimile transmission).
(b) Entire Agreement. This Agreement supersedes any and all other agreements, either
oral or written, between the parties with respect to the subject matter of this Agreement and
contains all of the covenants and agreements between the parties with respect to the subject matter
of this Agreement.
(c) Modification. No change or modification of this Agreement is valid or binding
upon the parties, nor will any waiver of any term or condition in the future be so binding, unless
the change or modification or waiver is in writing and signed by the parties to this Agreement.
(d) Governing Law and Venue. The parties acknowledge and agree that this Agreement
and the obligations and undertakings of the parties under this Agreement will be performable in
Georgia. This Agreement is governed by, and construed in accordance with, the laws of the State of
Georgia. If any action is brought to enforce or interpret this Agreement, venue for the action
will be in Georgia.
(e) Counterparts. This Agreement may be executed in counterparts, each of which
constitutes an original, but all of which constitutes one document.
(f) Costs. If any action at law or in equity is necessary to enforce or interpret the
terms of this Agreement, each party shall bear its own costs and expenses.
(g) Estate. If Executive dies prior to the expiration of the term of employment or
during a period when monies are owing to him, any monies that may be due him from the Company under
this Agreement as of the date of his death shall be paid to his estate and as when otherwise
payable.
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(h) Assignment. The Company shall have the right to assign this Agreement to its
successors or assigns. The terms “successors” and “assigns” shall include any person, corporation,
partnership or other entity that buys all or substantially all of the Company’s assets or all of
its stock, or with which the Company merges or consolidates. The rights, duties and benefits to
Executive hereunder are personal to him, and no such right or benefit may be assigned by him.
(i) Binding Effect. This Agreement is binding upon the parties hereto, together with
their respective executors, administrators, successors, personal representatives, heirs and
permitted assigns.
(j) Waiver of Breach. The waiver by the Company or Executive of a breach of any
provision of this Agreement by Executive or the Company may not operate or be construed as a waiver
of any subsequent breach.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| “Company” | ||||||
| ARRIS GROUP, INC. | ||||||
| By: | /s/ Xxxxxxxx Xxxxxxxx | |||||
| Name: | Xxxxxxxx Xxxxxxxx | |||||
| Title: | Executive Vice President | |||||
| “Executive” | ||||||
| /s/ Xxxxx X. Xxxxx | ||||||
| Xxxxx X. Xxxxx | ||||||
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