Exhibit 10.28
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT made as of December 20, 2000 by and between AML
Communications, Inc., a Delaware corporation (the "Company"), and Xxxx X.
Xxxxx ("Executive").
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the threat or the occurrence of a Change in Control (as
hereinafter defined) can result in significant distractions of its key
management personnel because of the uncertainties inherent in such a
situation;
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
Executive in the event of a threat or occurrence of a Change in Control and
to ensure his continued dedication and efforts in such event without undue
concern for his personal financial and employment security; and
WHEREAS, in order to induce Executive to remain in the employ of
the Company, particularly in the event of a threat or the occurrence of a
Change in Control, the Company desires to enter into this Agreement with
Executive to provide Executive with certain benefits in the event of a
termination of employment as a result of a Change in Control.
AGREEMENT
NOW, THEREFORE, in consideration of the respective agreements of
the parties contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. Term of Agreement. This Agreement shall commence as of the date
hereof and shall continue in effect so long as Executive is an employee of
the Company.
2. Definitions.
2.1. Base Amount. For purposes of this Agreement, "Base Amount"
shall mean Executive's annual base salary at the rate in effect immediately
prior to the Change in Control and shall include all amounts of his base
salary that are deferred under any other agreement or arrangement with the
Company.
2.2. Change in Control. For purposes 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.
2.3. Company. For purposes of this Agreement, the "Company" shall
include the Company's "Successors and Assigns" (as hereinafter defined).
2.4. Successors and Assigns. For 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 a Change in Control
3.1 Change in Control. If, during the term of this Agreement, a
Change in Control occurs and employment is terminated within one year of the
effective date of the Change in Control, the Company shall pay Executive in a
single payment an amount in cash equal to the Base Amount.
3.2 Date of Payment. The amount provided for in Section 3.1 shall
be paid in a single lump sum cash payment within ten (10) days after the
effective date of the Change in Control (or earlier, if required by
applicable law).
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4. 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 the laws of
descent and distribution. This Agreement shall inure to the benefit of and be
enforceable by Executive's legal personal representative.
5. 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 prepaid, 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 Board with a copy to the Secretary 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 thereof,
except that notice of change of address shall be effective only upon receipt.
6. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent
or limit Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company and for
which Executive may qualify, nor shall anything herein limit or reduce such
rights as Executive may have under any other agreements with the Company.
Amounts which are vested benefits or which Executive is otherwise entitled to
receive under any plan or program of the Company shall be payable in
accordance with such plan or program, except as explicitly modified by this
Agreement.
7. No Guaranteed Employment. Executive and the Company acknowledge that
the employment of Executive by the Company is "at will" and may be terminated
by either Executive or the Company at any time.
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 Executive or others.
9. Mutual Non-Disparagement. The Company and its affiliates agree and
the Company shall use its best efforts to cause their respective executive
officers and directors to agree, that they will not make or publish any
statement critical of Executive, or in any way adversely affecting or
otherwise maligning Executive's reputation. The Executive agrees that he will
not make or publish any statement critical of the Company, its affiliates and
their respective executive officers and directors, or in any way adversely
affecting or otherwise maligning the business or reputation of any member of
the Company and its affiliates and their respective officers, directors and
employees.
10. 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 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 which are
not expressly set forth in this Agreement.
11. 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.
12. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
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.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer and Executive has executed this Agreement as of
the day and year first above written.
AML COMMUNICATIONS, INC.
By:
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Name:
Title:
By:
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