Exhibit 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "AGREEMENT") is effective as of March 15,
2004 by and between RADYNE COMSTREAM INC., a Delaware corporation (the
"COMPANY") and Malcolm Persen, an individual ("EXECUTIVE").
RECITALS
WHEREAS, Executive is currently the Chief Financial Officer of the
Company;
WHEREAS, the Company desires to retain the services of Executive, and
Executive desires to provide services to the Company, in accordance with the
terms, conditions and provisions of this Agreement;
NOW THEREFORE, in consideration of the covenants and mutual agreements set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in reliance upon the
representations, covenants and mutual agreements contained herein, the Company
and Executive agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions of this Agreement, the
Company agrees to employ Executive as Chief Financial Officer of the Company,
and Executive agrees to diligently perform the duties associated with such
positions. Executive will report directly to the Chief Executive Officer.
Executive will devote substantially all of his business time, attention and
energies to the business of the Company and will comply with the charters,
policies and guidelines established by the Company from time to time applicable
to its directors and senior management executives.
2. TERM. Executive will be employed under this Agreement until March 14,
2008, unless Executive's employment is terminated earlier pursuant to Section 7.
The Agreement will renew for additional periods by mutual agreement of the
Company and the Executive.
3. SALARY. The Company will pay Executive a base salary at the annual rate
of $210,000 per year commencing March 15, 2005. The Executive's base salary may
be raised, but not lowered, without Executive's consent.
4. Incentive Compensation.
A. Bonus. Executive will be entitled to incentive compensation based on
the achievement of certain performance targets pursuant to the Management
Incentive Plan (MIP).
5. EXECUTIVE BENEFITS. During the term of this Agreement, Executive will
be entitled to reimbursement of reasonable and customary business expenses. The
Company will provide to Executive such fringe benefits and other Executive
benefits as are regularly provided by the Company to its senior management;
provided, however, that nothing herein shall preclude the Company from amending
or terminating any employee or general executive benefit plans or programs. In
addition, the Company shall provide the Executive with the benefits set forth on
Exhibit B, which benefits may not be terminated or reduced during the term
hereof.
6. TERMINATION.
A. Voluntary Resignation by Executive or Termination Without Cause.
If Executive voluntarily terminates his employment with the Company for
Good Reason, or the Company terminates Executive without Cause, then (i) the
Company will be obligated to continue to pay Executive salary for two years
following termination; (ii) any Bonus due Executive for the year of termination
shall be paid subject to Executive's compliance with this Agreement, including
Sections 8 and 9 as provided therein; (iii) the Company shall reimburse
Executive for COBRA premiums for the period that the Company is required to
offer COBRA coverage as a matter of law; and (iv) any options granted on or
after the date hereof shall vest in full, and remain in effect as provided in
the applicable plan or agreement.
B. Termination upon Death or Disability. If Executive's employment is
terminated as a result of Executive's death or Disability, then the Company will
be obligated to pay to Executive, his heirs or personal representative, (i)
Executive's then current salary through the Date of Termination, (ii) a pro
rated amount of Executive's bonus for the year , (iii) Executive's COBRA
premiums for the period that the Company is required to offer COBRA coverage as
a matter of law, and (iv) the Executive's options granted on or after the date
herein shall accelerate and become vested without further action and, to the
extent permitted under the plan's governing documents, Executive or his
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heirs or personal representative shall have a period of one year from the Date
of Termination to exercise such options.
C. Voluntary Termination (Without Good Reason) or Termination for Cause by
the Company.
(1) If the Executive resigns without Good Reason, or if the Company
discharges Executive for Cause, then the Company will be obligated to pay
Executive's base salary through the date of termination. No bonus shall be
payable. Options shall terminate as provided in the applicable plan or
agreement.
(2) Upon voluntary termination without Good Reason by Executive, or
a termination for Cause by the Company, the provisions of Section 8
(Restrictive Covenant) shall automatically become applicable for the
one-year period set forth therein, without any further payment due
Executive. Executive acknowledges and agrees that the compensation herein,
including the signing bonus, is adequate consideration for such covenants.
D. Definitions. For purposes of this Agreement:
(1) "CAUSE" shall have the meaning ascribed to it in the Change of
Control Agreement (the "Change of Control Agreement") of Executive dated
May 13, 2004,
(2) "DISABILITY" shall mean a disability that results in Executive
being medically unable to fulfill his duties under this Agreement for six
consecutive months, and
(3) "GOOD REASON" shall include the following circumstances: (a) if
the Company assigns you duties that are materially inconsistent with, or
constitute a material reduction of powers or functions associated with,
your position, duties, or responsibilities with the Company, or a material
adverse change in your titles, authority, or reporting responsibilities,
or in conditions of your employment, (b) if your base salary is reduced or
the potential incentive compensation (or bonus) to which you may become
entitled to at any level of performance by you or the Company is reduced,
(c) if the Company fails to cause any successor to expressly assume and
agree to be bound by the terms of this Agreement, (d) any termination by
the Company of your employment for grounds other than for "Cause," or
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(e) if you are required to relocate to an employment location that is more
than fifty (50) miles from Phoenix, Arizona.
7. RESTRICTIVE COVENANT. In consideration of Executive's employment,
Executive agrees to the restrictive covenants set forth in Section 3 of his
Change in Control Agreement, which are incorporated herein.
8. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
A. It is understood that in the course of Executive's employment with
Company, Executive will become acquainted with Company Confidential Information
(as defined below). Executive recognizes that Company Confidential Information
has been developed or acquired at great expense, is proprietary to the Company,
and is and shall remain the exclusive property of the Company. Accordingly,
Executive agrees that he will not, disclose to others, copy, make any use of, or
remove from Company's premises any Company Confidential Information, except as
Executive's duties may specifically require, without the express written consent
of the Board of Directors of the Company, during Executive's employment with the
Company and thereafter until such time as Company Confidential Information
becomes generally known, or readily ascertainable by proper means by persons
unrelated to the Company.
B. Upon any termination of employment, Executive shall promptly deliver to
the Company the originals and all copies of any and all materials, documents,
notes, manuals, or lists containing or embodying Company Confidential
Information, or relating directly or indirectly to the business of the Company,
in the possession or control of Executive.
C. "COMPANY CONFIDENTIAL INFORMATION" shall mean confidential, proprietary
information or trade secrets of Company and its subsidiaries and affiliates
including without limitation the following: (1) customer lists and customer
information as compiled by Company; (2) Company's internal practices and
procedures; (3) internal Company financial information; (4) supply of materials
information, including sources and costs, designs, information on land and lot
inventories, and current and prospective projects; (5) strategic planning,
manufacturing, engineering, purchasing, finance, marketing, promotion,
distribution, and selling activities; (6) all other information which is treated
by Company as confidential, include all information having
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independent economic value to Company that is not generally known to, and not
readily ascertainable by proper means by, persons who can obtain economic value
from its disclosure or use. Notwithstanding the foregoing provisions, the
following shall not be considered "Company Confidential Information": (i) the
general skills of the Executive as an experienced entrepreneur and senior
management level employee; (ii) information generally known by senior management
executives within the industry in which the Company operates; (iii) persons,
entities, contacts or relationships of Executive that are also generally known
in the industry; and (iv) information which becomes available on a
non-confidential basis from a source other than Executive which source is not
prohibited from disclosing such confidential information by legal, contractual
or other obligation.
D. Executive hereby agrees that the periods of time provided for in
Sections 8 and 9 and other provisions and restrictions set forth herein are
reasonable and necessary to protect the Company and its successors and assigns
in the use and employment of the goodwill of the business conducted by
Executive. Executive further agrees that damages cannot compensate the Company
in the event of a violation of Section 8 or 9 and that, if such violation should
occur, injunctive relief shall be essential for the protection of the Company
and its successors and assigns. Accordingly, Executive hereby covenants and
agrees that, in the event any of the provisions of Section 8 or 9 shall be
violated or breached, the Company shall be entitled to obtain injunctive relief
against the party or parties violating such covenants, without bond but upon due
notice, in addition to such further or other relief as may be available at
equity or law. Obtainment of such an injunction by the Company shall not be
considered an election of remedies or a waiver of any right to assert any other
remedies which the Company has at law or in equity. No waiver of any breach or
violation hereof shall be implied from forbearance or failure by the Company to
take action thereof. The prevailing party in any litigation, arbitration or
similar dispute resolution proceeding to enforce this provision will recover any
and all reasonable costs and expenses, including attorneys' fees.
E. For purposes of Sections 8 and 9, the term "COMPANY" includes Radyne
ComStream Inc. and its subsidiaries and affiliates. For purposes hereunder, an
affiliate shall be deemed to be any corporation or other business entity in
which the Company or its subsidiaries owns a controlling interest.
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9. SEVERABILITY. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under any applicable law, then such provision will be
deemed to be modified to the extent necessary to render it legal, valid and
enforceable, and if no such modification will make the provision legal, valid
and enforceable, then this Agreement will be construed as if not containing the
provision held to be invalid, and the rights and obligations of the parties will
be construed and enforced accordingly.
10. ASSIGNMENT BY COMPANY. Nothing in this Agreement shall preclude the
Company from consolidating or merging into or with, or transferring all or
substantially all of its assets to, another corporation or entity that assumes
this Agreement and all obligations and undertakings hereunder. Upon such
consolidation, merger or transfer of assets and assumption, the term "COMPANY"
as used herein shall mean such other corporation or entity, as appropriate, and
this Agreement shall continue in full force and effect.
11. ENTIRE AGREEMENT. This Agreement, the Change of Control Agreement of
Executive, and any agreements concerning stock options or other benefits, embody
the complete agreement of the parties hereto with respect to the subject matter
hereof and supersede any prior written, or prior or contemporaneous oral,
understandings or agreements between the parties that may have related in any
way to the subject matter hereof. This Agreement may be amended only in writing
executed by the Company and Executive. Notwithstanding the foregoing, nothing in
this Agreement is intended to affect any previous agreements pertaining to the
grant of options to the Executive, including without limitation, provisions in
Executive's prior Change of Control Agreement, providing for acceleration upon a
change-in-control.
12. GOVERNING LAW. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement, shall be governed by and
construed in accordance with the internal laws, and not the law of conflicts, of
the State of Arizona.
13. NOTICE. Any notice required or permitted under this Agreement must be
in writing and will be deemed to have been given when delivered personally or by
overnight courier service or three days after being sent by mail, postage
prepaid, at the address indicated below or to such changed address as such
person may subsequently give such notice of:
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if to Parent or Company: Radyne ComStream
3138 E. Elwood
Phoenix, AZ 85034 8501
Attention: Chief Executive Officer
with a copy to: Snell & Wilmer L.L.P.
One Arizona Center
400 E. Van Buren Street
Phoenix, Arizona 85004-0001
Phone: (602) 382-6252
Fax: (602) 382-6070
Attn: Steven D. Pidgeon, Esq.
if to Executive: Malcolm Persen
5014 E Desert Park Lane
Paradise Valley, Arizona 85253
Phone: (480) 951-8340
14. ARBITRATION. Any dispute, controversy, or claim, whether contractual
or non-contractual, between the parties hereto arising directly or indirectly
out of or connected with this Agreement, relating to the breach or alleged
breach of any representation, warranty, agreement, or covenant under this
Agreement, unless mutually settled by the parties hereto, shall be resolved by
binding arbitration in accordance with the Employment Arbitration Rules of the
American Arbitration Association (the "AAA"). Any arbitration shall be conducted
by arbitrators approved by the AAA and mutually acceptable to Company and
Executive. All such disputes, controversies, or claims shall be conducted by a
single arbitrator, unless the dispute involves more than $50,000 in the
aggregate in which case the arbitration shall be conducted by a panel of three
arbitrators. If the parties hereto are unable to agree on the arbitrator(s),
then the AAA shall select the arbitrator(s). The resolution of the dispute by
the arbitrator(s) shall be final, binding, nonappealable, and fully enforceable
by a court of competent jurisdiction under the Federal Arbitration Act. The
arbitrator(s) shall award damages to the prevailing party. The arbitration award
shall be in writing and shall include a statement of the reasons for the award.
The arbitration shall be held in the Phoenix metropolitan area. The
arbitrator(s) shall award reasonable attorneys' fees and costs to the prevailing
party.
15. WITHHOLDING; RELEASE; NO DUPLICATION OF BENEFITS. All of Executive's
compensation under this Agreement will be subject to deduction and withholding
authorized or required by applicable law. The Company's obligation to make any
post-termination payments
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hereunder (other than salary payments and expense reimbursements through a date
of termination), shall be subject to receipt by the Company from Executive of a
mutually agreeable release, and compliance by Executive with the covenants set
forth in Sections 8 and 9 hereof. If there is any conflict between the
provisions of the Change in Control Agreement and this Agreement, such conflict
shall be resolved so as to provide the greater benefit to Executive. However, in
order to avoid duplication of any monetary benefits, any payments or benefits
due hereunder will be reduced by any payments or benefits provided under the
Change in Control Agreement.
16. SUCCESSORS AND ASSIGNS. This Agreement is solely for the benefit of
the parties and their respective successors, assigns, heirs and legatees.
Nothing herein shall be construed to provide any right to any other entity or
individual.
17. LEGAL COUNSEL. Executive recognizes that Snell & Wilmer LLP is counsel
to the Company and has been advised to seek his own counsel to assist him with
this Agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
RADYNE COMSTREAM INC., a Delaware
corporation
By: /s/ R. C. Fitting Date: March 9, 2005
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Name: R C Fitting
Title: CEO
By: /s/ Malcolm Persen Date: March 9, 2005
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Name: Malcolm Persen
Title: CFO
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