EXHIBIT 10.10 (C)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT, initially made as of the 16th of October, 1995
and subsequently amended and restated on the 29th day of April, 1999, by and
between ANTEC Corporation and Robert Stanzione ("Executive"), is amended and
restated as of the 6th day of August, 2001 (the "Effective Date"), by and
between Arris Group, Inc., a Delaware corporation ("Company"), and Executive.
WHEREAS, Company and Executive desire to modify their current
contractual relationship to substitute Company for its subsidiary, ANTEC
Corporation, and to make certain other changes;
WHEREAS, Company recognizes Executive's knowledge and
experience in its industry and business and Executive's desire to assure
Executive's continued employment; and
WHEREAS, Executive is desirous of serving Company on the terms
herein provided, including those restricting Executive's ability to compete in
the future;
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, the parties
hereto agree as follows:
1. EMPLOYMENT AND TERM. Company will employ Executive and Executive will
work for Company in the Atlanta area as follows: Executive will serve
as President and Chief Executive Officer until Executive reaches the
age of 62 or this Agreement is terminated as provided in Section 5 (the
"Termination Date"). As President and Chief Executive Officer,
Executive will perform on a full-time basis the normal executive
services of a chief executive officer consistent with Executive's
education, training and business experience.
2. COMPENSATION. Company will pay Executive for the performance of
Executive's duties as President and Chief Executive Officer (a) a
salary ("Base Compensation"), at the rate of $600,000 a year as of July
1, 2001, adjusted minimally thereafter for annual inflation and any
significant increase in the complexity of Company, and (b) a bonus
("Bonus") for each year and partial year in an amount determined by
Company using such criteria as it deems fair and equitable in
accordance with past practices, allowing up to 200% of planned Bonus
for performance above target goals. The amount of the planned Bonus
shall be 100% of total Base Compensation for the year or partial year
for which the Bonus is being paid. Executive's Base Compensation shall
be payable semi-monthly, and the Bonus shall be payable as soon after
the end of each calendar year as it can be determined, but in any event
within ninety (90) days thereafter.
3. ADDITIONAL BENEFITS.
(a) Executive will be entitled to participate in and receive
benefits under any retirement plan, health plan, disability plan and
life insurance plan or other similar executive benefit plan or
arrangement (collectively "Benefit Plans") generally made available by
Company from time to time to its senior executives. Company will not
substantially reduce the aggregate amount it is currently incurring to
provide Benefit Plans to Executive. Executive will be entitled to such
other benefits, including vacation, fringe benefits and expense
reimbursement as generally made available by Company from time to time
to its senior executives.
(b) Executive will be provided a supplemental pension equal to (i)
the amount of pension he would have had under Company's defined benefit
retirement plan and related excess benefit plan if period of
Executive's service under those plans were tripled for all purposes
including without limitation for purposes of eligibility for a pension,
less (ii) the amount of pension to which Executive is entitled under
Company's defined benefit retirement plan and related excess benefit
plan. This additional benefit will be paid in accordance with the
provisions of the excess benefit plan as they read on the Effective
Date.
4. STOCK OPTIONS. Executive will be periodically granted options to
purchase shares of Company as determined by the Board or its
Compensation Committee in its good faith judgment to be appropriate.
These options will be granted at the same time options are granted
generally to other senior executives of Company. The exercise price of
these options will be the market price of the shares at time of grant.
5. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated by Company by written notice
to Executive only by adoption by the Board of Directors of a resolution
approved by directors constituting a majority of all of the directors
then holding office. The termination will not be effective until two
years after written notice of termination is given Executive unless
termination is for "Good Cause." "Good Cause" shall mean (i)
Executive's conviction of any embezzlement or any felony involving
fraud or breach of trust relating to the performance of Executive's
duties for Company, (ii) Executive continues in material breach of this
Agreement for more than thirty (30) days after being notified in
writing by Company of such breach, or intentionally repeats such breach
after such thirty day period, provided Company has given such notice to
Executive within thirty (30) days of first becoming aware of the facts
constituting such breach, (iii) Executive's death, or (iv) permanent
disability which materially impairs Executive's performance of
Executive's duties and qualifies Executive for full benefits under
Company's long term disability insurance policy.
(b) Executive may terminate this Agreement by giving Company
written notice of termination. The termination will not be effective
until two years after written notice is given Company unless
termination is for "Good Reason." "Good Reason" shall exist if (i)
Company continues in material breach of this Agreement for more than
thirty (30) days after being notified in writing by Executive of such
breach, or intentionally repeats such breach after such thirty day
period, provided Executive has given such notice to Company within
thirty (30) days of first becoming aware of the facts constituting such
breach, (ii) Company gives Executive a notice of termination without
"Good Cause" as specified above, provided Executive terminates this
Agreement within 30 days of receiving such notice, or (iii) a "Change
of Control" occurs, and Executive's employment hereunder is terminated
by Company other than for "Good Cause" or by Executive because there
has been a material diminution in Executive's position after a Change
of Control that exists at any time after 6 months after the Change of
Control. No longer being the chief executive officer of a significant
public company at any time after 6 months after the Change of Control
shall be considered a material diminution of Executive's position. A
"Change of Control" shall mean any person, as such term is used in
section 13(d) of and 14(d) of the Securities Exchange Act of 1934,
amended (the "Exchange Act"), is or
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becomes the "beneficial owner" (as defined in Rule 13(d)-3 under the
Exchange Act) of securities of Company representing more than 25% (65%
in the case of Nortel Networks Corporation and its affiliates) of the
combined voting power of Company's then outstanding voting securities
or the occurrence of a transaction that has substantially the same
effect. Examples of such a transaction are a merger with another person
(unless the stockholders of that person are substantially the same as
the stockholders of the Company prior to the merger), a sale of
substantially all the assets of the Company and its subsidiaries,
considered as a whole, directly or by merger, to another person (unless
the stockholders of that person are substantially the same as the
stockholders of the Company at the time of such sale or merger), or a
merger or purchase of assets in which although the Company is the
surviving corporation, there is a change in the majority of the Board
of Directors of the Company as the result of the transaction.
(c) If Executive terminates this Agreement and simultaneously
therewith his employment by Company for Good Reason, all of Executive's
stock options outstanding and unexercised at the Termination Date shall
become immediately and fully exercisable as of the Termination Date,
and Company for a period of three years from such termination (the
period during which Executive is entitled to severance benefits is the
"Severance Period") shall continue to provide to Executive (a) his Base
Compensation, at the rate most recently determined, (b) a bonus for
each fiscal year (and a pro rata amount for each partial year) in an
amount equal his Typical Annual Bonus at the Termination Date, and (c)
the Benefit Plans as provided by Section 3 (subject in the case of
long-term disability to the availability of such coverage under
Company's insurance policy). Executive's Typical Annual Bonus at the
Termination Date shall be the annual average of the three highest full
year Bonuses received by Executive for the five full years (or such
lesser number of years) after 2001 preceding the Termination Date. To
the extent that the full years falling within this period are less than
three, then Executive's Typical Annual Bonus shall be computed by
averaging such full year Bonuses, if any, falling within this period
with 100% of Executive's Base Compensation at the Termination Date
times the number of years necessary to bring the number of years being
considered to three. (Examples: if the Termination Date should occur
prior to December 31, 2002, his Typical Annual Bonus would be 100% of
his then Base Compensation; if the Termination Date should occur during
the year 2003, his Typical Annual Bonus would be the average of the
Bonus he received for 2002 and twice 100% of his then Base
Compensation.)
(d) During the Severance Period, Executive will serve Company as a
consultant on matters within Executive's expertise or knowledge as may
be reasonably requested by Company. All such consultation will be
arranged by Company so as to not interfere with the other activities of
Executive. Executive will be reimbursed by Company for any expenses
incurred by Executive at the direction of Company. As a consultant,
Executive's options to purchase stock of Company will continue in
accordance with their terms while he is a consultant to Company. At the
end of this period, all such options, to the extent they have not
previously expired pursuant to their specified expiration dates, shall
expire notwithstanding any other provision to the contrary, except,
subject to the specified expiration dates, Executive's executor or
administrator shall have the period provided by the options to exercise
them after the death of Executive while he is a consultant to Company.
(e) The parties agree that the payments and benefits provided for
in subsection (c) of this Section shall be deemed to constitute
liquidated damages for Company's breach or constructive breach of this
Agreement and payment for the non-competition provisions of this
Agreement, and Company agrees that (i) Executive shall not be required
to mitigate his
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damages by seeking other employment or otherwise, and (ii) Company's
payments and other obligations under this Agreement shall not be
reduced in any way by reason of any compensation received by Executive
from sources other than Company after the Termination Date. The
obligations of this Agreement to be performed by the parties following
the termination of this Agreement will survive the termination of this
Agreement.
6. NON-COMPETITION COVENANT. Executive agrees that throughout his
employment hereunder and during the Severance Period he will not
directly or indirectly, alone or as a member of partnership,
association or joint venture or as an employee, officer, director or
stockholder of any corporation or in any other capacity:
(a) engage in any activity which is competitive with the
business of Company (which for purposes of this Section 6
shall include any subsidiary) in the United States or in any
foreign county in which Company is carrying on such business,
provided that the foregoing provision shall not be deemed to
prohibit Executive from purchasing for investment any
securities or interest in any publicly-owned organization
which is competitive with the business of Company so long as
his investment in any such organization does not exceed one
percent of its total equity; or
(b) solicit in connection with any activity which is
competitive with Company, any customers or suppliers which he
solicited on behalf of Company or on behalf of the business of
Company; or
(c) solicit or in any manner attempt to influence or induce
any employee of Company to leave the employment of Company or
use or disclose to any person any information obtained while
employed by the Company concerning the names and addresses of
Company employees.
7. TAXES. Company will timely pay to Executive the amount of any excise
taxes imposed on Executive under Section 4999 of the Internal Revenue
Code as currently written by reason of payments or benefits under the
provisions of this Agreement, including this provision, and the amount
of any federal and state income taxes imposed on Executive by reason of
payments to Executive under this Section.
8. NOTICE. Any Notices given hereunder shall be in writing and shall be
given by personal delivery or by certified or registered mail, return
receipt requested, addressed to:
If to Company: If to Executive:
Arris Group, Inc. Current address in
11450 Technology Circle the records of the
Duluth, Georgia 30097 Company
or such other address as shall be furnished in writing by one party to
the other.
9. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if the
invalid or unenforceable provision has been omitted.
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10. ASSIGNMENT. Company's obligations hereunder shall be binding legal
obligations of any successor to all or substantially all the business
of the Company and its subsidiaries, considered as a whole, by
purchase, merger, consolidation or otherwise. Company and/or its
subsidiaries may not sell or otherwise dispose of all or substantially
all of the assets of the Company and its subsidiaries, considered as a
whole, or merge or consolidate with any other entity without making
adequate provision for its obligations hereunder. Except in accordance
with foregoing, neither party may assign this Agreement, provided that
upon Executive's death, this Agreement shall be binding upon and inure
to the benefit of Executive's heirs, legatees and the legal
representative of each.
11. APPLICABLE LAW. This Agreement shall be construed and interpreted
pursuant to the laws of Georgia.
12. AMENDMENT. This Agreement may be amended only by a written document
signed by both parties.
13. PRIOR AGREEMENTS. This Agreement supersedes any agreements relating to
the option granted Executive on February 10, 1998 that are not set
forth in that option.
14. LEGAL FEES. The prevailing party in any litigation concerning this
Agreement shall be reimbursed by the party found to be in breach of
this Agreement for all reasonable costs, including attorney fees,
incurred by the prevailing party in enforcing this Agreement.
15. STOCK UNITS. The 24,077 stock units granted to Executive on January 31,
2000, shall convert to common stock of the Company on June 30, 2004, or
such earlier date Executive is not employed by Company. 4,815 of these
units and distributions on these units will be forfeited if prior to
June 30, 2004, Executive gives Company notice of termination of this
Agreement without Good Reason.
16. SUPPLEMENTAL RETIREMENT BENEFITS. Subject to and conditioned upon
Company not having terminated this Agreement pursuant to Section
3(a)(i) or (ii), Executive will be provided the supplemental retirement
benefits set forth in the attached Supplemental Pension Plan.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the day and year first above written.
ARRIS GROUP, INC.
By:
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Its:
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