EXHIBIT 10.35
TERMINATION AND CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, dated as of September 12, 2001, is made by and between
AML Communications, Inc., a Delaware corporation (the "Company"), and Xxxxx X.
XxXxxx (the "Executive").
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes the valuable services of the Executive to the Company since
its inception, and as such recognizes the need to compensate the
Executive in case of termination.
WHEREAS, the Board has determined that it is essential and in the
best interest of the Company and its stockholders to retain the services
of the Executive in the event of a threat or occurrence of a Change in
Control (as defined below) and to ensure his continued dedication and
efforts in such event without undue concern for his personal financial
and employment security.
NOW THEREFORE, in consideration of the respective covenants and
agreements set forth below and other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the parties
hereto agree as follows:
AGREEMENT
1. Terms of Agreement. This Agreement shall commence as of the date hereof.
2. Definitions.
2.1. Base Amount. For the purposes of this Agreement, "Base Amount"
shall mean $155,000 or the Executive's annual base salary at the
rate in effect immediately prior to the Termination, whichever is
higher and shall include all amounts of his base salary that are
deferred under any other agreement or arrangement with the
Company.
2.2. Termination. For the purposes of this Agreement, Termination
shall occur under the following circumstances:
(a) Disability. If the Company in good faith, after
considering all relevant medical evidence, establishes
that the Executive has incurred a Disability (as defined
below) during his term of employment, such party may give
the Executive notice of their intention to terminate the
Executive's employment with the Company.
"Disability" shall mean the Executive's failure to perform
his duties to the Company for a total of 16 consecutive
weeks during any 12- month period as a result of
incapacity due to mental or physical illness which is
determined to be total and permanent by a physician
selected by the Company and acceptable to the Executive or
the Executive's legal representative (such agreement as to
acceptability not to be withheld, delayed or conditioned
unreasonably)
(b) Good Reason. The Executive may terminate his employment
for Good Reason. For the purpose of this Agreement, the
Executive shall have "Good Reason" to terminate his
employment with the Company in the event of (i) any
reduction in the Executive's compensation (including
Annual Base Salary, Bonus Compensation and Benefits, but
excluding any termination or amendment of Benefits
pursuant to a termination or amendment generally of the
plan or arrangements relating thereto and excluding
discretionary bonuses or similar discretionary payments),
without the Executive's consent;
(ii) any material breach by the Company of, or default by
it; provided, however, that in the case of any breach or
default, the Executive shall provide the Company with
written notice of such breach at least 30 days in advance
of his intended termination date and a reasonable
opportunity and period of time to cure such breach or
default (provided, further, however, if the Company cures
such breach, the Executive shall not have Good Reason to
Terminate his employment with the Company); (iii) any
substantial diminution of duties, responsibilities or
status, or other imposition by the Company of unreasonable
requirements or working conditions on the Executive which
are not withdrawn or corrected in all material respects
within a 30-day period following notice by the Executive
to the Company of such diminution or imposition or, if any
of the foregoing arose because of conditions or
circumstances outside the control of the Company, such
longer period, but not longer than 90 days, as may be
reasonably required under the circumstances.
(c) Without Cause. The Company may terminate the Executive's
employment hereunder Without Cause upon 30 days' written
notice.
(d) Mutual Agreement. The Executive's employment may be
terminated by Mutual Agreement between the Executive and
the Company at any time.
2.3. Change in Control. For the purposed of this Agreement, a "Change
in Control" shall mean any consolidation or merger of the Company
with or into another corporation or corporations in which the
stockholders of the Company immediately prior to the
consolidation or merger do not retain a majority of the voting
power of the surviving corporation or a sale of all or
substantially all of the assets of the Company
2.4. Company. For the purposes of this Agreement, the "Company" shall
include the Company's "Successors and Assigns" (as hereunder
defined)
2.5 Successors and Assigns. For the purposes of this Agreement,
Successors and Assigns" shall mean a corporation or other entity
acquiring all or substantially all the assets and business of the
Company whether by operation of law or otherwise, and any
affiliate of such Successors and Assigns.
3. Payment Upon Termination.
3.1 Termination. Upon termination of the Executive, for other than
Change in Control or Cause, the Company shall pay the Executive
or the Executive's beneficiaries or estate or legal
representatives in a single payment an amount in cash equal to
the Base Amount divided by 12, multiplied by the number of years
of service rendered by the Executive since the Company's
inception in 1986, including the interrupted period from November
2000 to February 2001.
3.2 Change in Control. If the Executive is terminated within 18
months after Change in Control has occurred, and has not been
subject to termination in accordance with 3.1, the Company shall
pay the Executive in a single payment an amount in cash equal to
two (2) times the Base Amount.
3.3 Bonus. Upon termination of the Executive, the Company shall pay
the Executive or the Executive's beneficiaries or estate or legal
representatives (in the case of termination due to death or
disability), a bonus equal to the average of the annual bonuses
received by the Executive in the two (2) years prior to the
Termination.
3.4 Benefits. All benefits, not limited to, any medical, dental,
retirement, disability, life insurance or arrangements made
available by the Company to any of its employees shall be
extended to the Executive for the duration covered i.e. one month
for each year of service.
3.5 Date of Payment. The amount provided in section 3.1, 3.2 and 3.3
shall be paid in a single lump sum cash payment within thirty
(30) days after the effective date of termination.
4. Mitigation of Damages. In the event of any termination of the
Executive's employment, the Executive shall not be required to seek
other employment to mitigate damages, and any income earned by the
Executive from other employment or self employment shall not be offset
against any obligations of the Company to the Executive under this
Agreement.
5. Successors; Binding Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the Company, its Successors and Assigns,
and the Company shall require any Successors and Assigns 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 or assignment had taken place. Neither this Agreement nor any
right or interest hereunder shall be assignable or transferable by
Executive, his beneficiaries or legal representatives, except by will or
by law of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal personal
representative.
6. Notice. For the purposes of this Agreement, notices and all other
communications shall be in writing and shall be deemed to have been duly
given when personally delivered or sent by certified mail, return
receipt requested, postage paid, by overnight courier or by facsimile,
addressed to the respective addresses and facsimile numbers last given
by each party to the other, provided that all notices to the Company
shall be directed to the attention of the President/CEO of the Company.
All notices and communications shall be deemed to have been received on
the date of delivery thereof or on the third business day after the
mailing.
7. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other program provided by the Company and for which
the Executive may qualify, nor shall anything herein limit or reduce
such rights as the Executive may have under any other agreements with
the Company. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company
shall be payable in accordance with such plan or program.
8. Settlement of Claims. The Company's obligation to make the payment
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other
right which the Company may have against the Executive or others.
9. Miscellaneous. 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 the Executive and the Company. 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 same or at any prior or
subsequent time. No agreement or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by either party.
10. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California without
giving effect to the conflict of laws principles thereof.
11. Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceablility of any provision shall not
affect the validity or enforceability of the provisions hereof.
12. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be original, but all of which together
will constitute one and the same Agreement.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties
hereto with respect to the subject matter hereof.
14. No Inconsistent Action. The parties hereto shall not voluntarily
undertake or fail to undertake any action or course of action
inconsistent with the provisions or essential intent of this Agreement.
Furthermore, it is the intent of the parties hereto to act in a fair and
reasonable manner with respect to the interpretation and application of
the provisions of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer and the Executive as of the date and year first
above written.
EXECUTIVE:
By:
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Xxxxx X. XxXxxx
AML COMMUNICATIONS, INC.
A Delaware Corporation
By:
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Xxxxx Xxxxx
President and CEO
