exv10w1



 










Exhibit 10.1




May 13, 2004




Malcolm Persen

Chief Financial officer




               Re:     Your Change in Control Agreement



Dear Malcolm:




     Upon execution by you, this letter will constitute your Change in Control
Agreement (“Agreement”) with Radyne ComStream Inc., (the “Company”).




	1.	 	Term. This Agreement will become effective May 13, 2004 and will
terminate when you terminate your employment with the Company.
	 
	2.	 	Termination in Connection with a Change in Control. In the event of a
Change of Control (as defined in the Company’s Long-Term Incentive Plan, a
copy of which definition is attached), you will be entitled to receive the
following:






		 	(a) Immediately prior to the effective date of a Change of Control, all
stock options granted to you and not otherwise vested shall vest and
become exercisable by you for a minimum of 90 days (or, if longer, the
term thereof) so that you may participate in the Change of Control
transaction to the fullest extent feasible, provided, however, that if
the acceleration of your options would cause a charge to the Company’s
earnings, then at the Company’s option it may offer you a consulting
position for the term of your options during which your options would
continue to vest;
	 
		 	(b) Upon any termination of your employment after a Change of Control,
for a period of eighteen months from the date of your termination, the
Company will pay for the COBRA benefits due you;
	 
		 	(c) If you are terminated without Cause (as defined in the attachment),
or you resign for Good Reason (as set forth in the attachment) within the
first twenty-four (24) months following the Change in Control, upon such
event you shall be paid in a lump sum an amount equal to one time your
current salary from the Company;
	 
		 	(d) Upon a Change in Control, funds sufficient to satisfy your Change of
Control payments in (b) or (c) above shall be deposited into a trust
account maintained by a major financial institution and shall be paid to
you upon your written notice to the Trustee to the effect that you have
been terminated without Cause or you have resigned for Good Reason. The
Company shall not have the ability to prevent such payment from the trust
upon your notice, but shall have the right to dispute your termination as
provided in Section 8 below, and pursue all other available remedies;
	 
		 	(e) To the extent that the benefits provided to you upon a Change in
Control would exceed the amount deductible pursuant to Section 280G of
the Internal Revenue Code (or any successor law), or the rules and
regulations thereunder, and thereby result in an excise tax payable by
you, then at least 30 days prior to the due date of any such tax, the
Company shall pay you an amount equal to the tax (together with any tax
on such payment).





     Covenant Not to Compete.




		 	(a) For a period of 1 year from any termination of your employment, (or,
if later, upon conclusion of your service as a consultant), you shall
not, directly or indirectly, for your own benefit or for, with or




 









 






	 	 	through any other individual, firm, corporation, partnership or other
entity, whether acting in an individual, fiduciary or other capacity,
own, manage, operate, control, advise, invest in (except as a 1% or less
shareholder of a public company), loan money to, or participate or assist
in the ownership, management, operation or control of or be associated as
a director, officer, employee, partner, consultant, advisor, creditor,
agent, independent contractor or otherwise with, or acquiesce in the use
of your name by, any business enterprise that is in direct competition
with the Company or any subsidiary within the United States of America or
any other country that the Company conducts business at the time of your
termination.
	 
		 	(b) In addition to the foregoing, at all times during the period of your
employment and for 1 year after any termination thereof (or, if later,
upon conclusion of your services as a consultant), you will not, directly
or indirectly (as described above), for your benefit or for, with or
through any business, hire, employ, solicit, or otherwise encourage or
entice any of the Company’s (or subsidiary’s) employees or consultants to
leave or terminate their employment with the Company.
	 
		 	(c) You and the Company consider the restrictions contained in
subparagraphs (a) and (b) above to be reasonable for the purpose of
preserving the Company’s proprietary rights and interests. If a court
makes a final judicial determination that any such restrictions are
unreasonable or otherwise unenforceable against you, you and the Company
hereby authorize such court to amend this Agreement so as to produce the
broadest, legally enforceable agreement, and for this purpose the
restrictions on time period, geographical area and scope of activities
set forth in subparagraphs (a) and (b) above are divisible; if the court
refuses to do so, you and the Company hereto agree to modify the
provisions held to be unenforceable to preserve each party’s anticipated
benefits thereunder to the maximum extent legal.
	 
		 	(d) You acknowledge and agree that the Company’s remedies at law for
breach or threatened breach of any of the provisions of this Paragraph
would be inadequate. Therefore, you agree that in the event of a breach
or threatened breach by you of the provisions in this Paragraph, the
Company shall be entitled to, in addition to its remedies at law and
without posting any bond, equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent
injunction, or any other equitable remedy that may then be available.






	3.	 	Personal Rights and Obligations. This Agreement and all rights and
obligations hereunder are personal and shall not be assignable by either
you or the Company except as provided in this subparagraph, and any
purported assignment in violation thereof shall be null and void. Any
person, firm or corporation succeeding to the business of the Company by
merger, consolidation, purchase of assets or otherwise, shall assume by
contract or operation of law the obligations of the Company hereunder and
in such a case you shall continue to honor this Agreement with such
business substituted for the Company as the employer.
	 
	4.	 	Notices. Any notice, election or communication to be given under this
Agreement shall be in writing and delivered in person or deposited,
certified or registered, in the United States mail, postage prepaid,
addressed as follows:





	 	 	 
	If to the Company:

	 	Radyne ComStream Inc.
	

	 	3138 East Elwood Street
	

	 	Phoenix, Arizona 85034
	

	 	Attn: Chief Executive Officer
	 
	 	 
	If to you:

	 	Malcolm Persen








		 	or to such other addresses as the Company or you may from time to time
designate by notice hereunder. Notices will be effective upon delivery
in person or upon receipt of any facsimile or e-mail, or at midnight on
the fourth business day after the date of mailing, if mailed.






	5.	 	Entire Agreement. Except for any confidentiality agreement, option
grants or Company plans or policies, to which you are subject, this
Agreement constitutes and embodies the full and complete understanding and
agreement of the Company and you with respect to your employment by the
Company and supersedes all




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	 	 	prior understandings or agreements whether oral or in writing. This
Agreement may be amended only by a writing signed by you and the Company.
This Agreement may be executed in any number of counterparts, each of
which will be considered a duplicate original.
	 
	6.	 	Binding Nature of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns and
shall be binding upon you, your heirs and legal representatives.
	 
	7.	 	Arbitration. Any controversy relating to this Agreement or relating to
the breach hereof shall be settled by arbitration conducted in Phoenix,
Arizona in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect. The award rendered by
the arbitrator(s) shall be final and judgment upon the award rendered by
the arbitrator(s) may be entered upon it in any court having jurisdiction
thereof. The arbitrator(s) shall possess the powers to issue mandatory
orders and restraining orders in connection with such arbitration. The
expenses of the arbitration shall be borne by the losing party unless
otherwise allocated by the arbitrator(s). This agreement to arbitrate
shall be specifically enforceable under the prevailing arbitration law.
During the continuance of any arbitration proceedings, the parties shall
continue to perform their respective obligations under this Agreement.
Nothing in this Agreement shall preclude the Company or any affiliate or
successor from seeking equitable relief, including injunction or specific
performance, in any court having jurisdiction, in connection with the
non-compete provisions herein and any obligations of confidentiality.
	 
	8.	 	Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Arizona.
	 
	9.	 	Withholding and Release. You acknowledge and agree that payments made to
you hereunder may be subject to taxes and withholding. You further
acknowledge and agree that payment of any of the benefits to be provided
to you under this Agreement following any termination of your employment
is subject to:






	(a)	 	your compliance with your agreements hereunder, including in
particular the non-competition provisions of Paragraph 3,
	 
	(b)	 	any reasonable and lawful policies or procedures of the Company
relating to employee severances; and
	 
	(c)	 	the execution and delivery by you of a release reasonably
satisfactory to the Company of any and all claims that you may have
against the Company or related persons, except for (i) the continuing
obligations provided herein, and (ii) for any continuing obligations of
indemnification due you as an officer or director (or a former officer or
director).





	 	 	 
	

	 	Very truly yours,
	 
	 	 
	

	 	

	

	 	Robert C. Fitting
	

	 	Chief Executive Officer







ACCEPTED:







[Executive]



Date:






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Definitions



“Cause” means in the event that you, in the reasonable judgment of the
Board:




     (1) materially breach this Agreement;



     (2) fail to follow any reasonable and lawful direction of the Board
of Directions of the Company or materially violate any reasonable rule or
regulation established by the Company from time to time regarding conduct
of its business;



     (3) engage in any act of dishonesty with respect to the Company;



     (4) engage in criminal conduct (whether related to or not related to
your employment); or



     (5) fail to perform your duties satisfactorily.


“Change of Control” means any of the following:




     (1) any merger of the Company in which the Company is not the
continuing or surviving entity, or pursuant to which 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 Stock immediately prior
to the merger have the same proportionate ownership of beneficial
interest of common stock or other voting securities of the surviving
entity immediately after the merger;



     (2) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of assets or earning power
aggregating more than 50% of the assets or earning power of the Company
and its subsidiaries (taken as a whole), other than pursuant to a
sale-leaseback, structured finance or other form of financing
transaction;



     (3) the shareholders of the Company approve any plan or proposal for
liquidation or dissolution of the Company;



     (4) any person (as such term is used in Section 13(d) and 14(d)(2)
of the Exchange Act), other than any current shareholder of the Company
or affiliate thereof or any employee benefit plan of the Company or any
subsidiary of the Company or any entity holding shares of capital stock
of the Company for or pursuant to the terms of any such employee benefit
plan in its role as an agent or trustee for such plan, shall become the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange
Act) of 50% or more of the Company’s outstanding Stock; or



     (5) during any two-year period, individuals who at the beginning of
such period do not constitute a majority of the Board at the end of that
period, excluding any new director approved by a vote of at least
two-thirds of the directors who were directors at the beginning of the
period.


“Good Reason” means, without your consent:




     (1) you suffer a reduction in position or a material change in your
functions, duties or responsibilities;



     (2) your annual salary is reduced by the Company or there is a
material reduction in your current benefits (other than a reduction in
benefits as part of overall reduction applicable to all or substantially
all other officers arising out of deteriorating economic conditions
effecting the Company); or



     (3) you are required to reside other than in Maricopa County,
Arizona.



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