EX-10.6






Exhibit 10.6




FIRST AMENDMENT TO

EMPLOYMENT AGREEMENT




          THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this “First Amendment”) is made and entered into
effective as of the 26th day of November, 2008, by and between Arris Group, Inc., a Delaware
corporation (“Company”), and David B. Potts (“Executive”).




          WHEREAS, the parties hereto entered into that certain Employment Agreement dated as of
December 7, 2006 (the “Agreement”); and




          WHEREAS, the parties hereto now desire to amend the Agreement as provided herein to make
certain changes and bring the Agreement into compliance with Section 409A of the Code.




          NOW, THEREFORE, for and in consideration of Executive’s continued employment with Company and
the premises and the mutual covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Executive
hereby agree as follows:




	1.	 	Capitalized terms that are used but not defined in this Amendment shall have the meaning
specified in the Agreement.






	2.	 	The second sentence of Section 2(a) of the Agreement is amended in its entirety to read as
follows:







	 	 	Executive’s Base Salary will be payable in arrears (no less frequently than monthly)
in accordance with the Company’s normal payroll procedures and will be reviewed
annually and subject to upward adjustment at the discretion of the Chief Executive
Officer and Compensation Committee, but will not be lowered except in connection
with reductions applied to all executive officers.
	 
	3.	 	Section 2(b) is amended by adding the following at the end thereof:
	 
	 	 	Executive’s bonus, if any, shall be payable as soon after the end of each calendar
year to which it relates as it can be determined, but in any event within two and
one-half (2-1/2) months thereafter.






	4.	 	Section 2(e) of the Agreement is amended by adding the following at the end thereof:








	 	 	Such payments and reimbursements shall be made as soon as administratively
practicable following submission of reasonable documentation and receipts for such
expenses but all such payments and reimbursements shall be made no later than the
last day of the calendar year following the calendar year in which Executive incurs
the reimbursable expense.




 









 












	5.	 	Section 4(a) of the Agreement is amended in its entirety to read as follows:
	 
	 	 	Executive’s employment shall terminate upon the death of Executive, provided,
however, that the Company shall continue to pay no less frequently than monthly (in
accordance with its normal payroll procedures) the Base Salary to Executive’s estate
for a period of three months after the date of Executive’s death.
	 
	6.	 	The last sentence of Section 4(e) of the Agreement is amended in its entirety to read as
follows:
	 
	 	 	Notwithstanding the foregoing, Executive shall continue to receive his full salary
and benefits under this Agreement for a period of six months after the effective
date of such termination with his base salary payable in arrears no less frequently
than monthly in accordance with the Company’s normal payroll procedures and
continued benefits on a monthly basis through such time.
	 
	7.	 	Section 4(f) of the Agreement is amended in its entirety to read as follows:
	 
	 	 	Following any expiration or termination of this Agreement and Executive’s employment
hereunder, in addition any amounts owed pursuant to Section 5 hereof, the Company
shall pay to Executive all amounts earned by Executive hereunder prior to the date
of such expiration and termination, as soon as administratively practicable
following the date of termination of Executive’s employment, in the normal course
consistent with the provisions of this Agreement. Additionally, subject to
Executive’s continued compliance with Sections 7 and 9 of this Agreement, if
Executive terminates his employment with the Company without Good Reason on or after
Executive attains age 62 (provided Executive has no less than 10 years of continuous
service with Company as of such termination), all of Executive’s stock options and
equity awards outstanding at termination of Executive’s employment shall continue to
vest for four (4) years after the termination as if Executive remained employed
through such time, and such stock options shall remain outstanding through the
original expiration date of the stock options (disregarding any earlier expiration
date based on Executive’s termination of employment).
	 
	8.	 	Section 5(a) of the Agreement is amended by adding to the end thereof the following:
	 
	 	 	The Company shall continue to pay to Executive his Base Salary (as in effect as of
the date of such termination) no less frequently than monthly in accordance with the
Company’s normal payroll procedures, beginning with the first payroll date after the
date of termination of Executive’s employment and continuing for twenty-four (24)
months immediately following the termination. The Company also shall pay to
Executive a bonus for each Company fiscal year (and a pro rata amount for each
partial Company fiscal year) during the twenty-four (24) months immediately
following Executive’s termination of employment in an amount




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	 	 	equal to the bonus Executive would have received had he fulfilled the requirements
to earn his target bonus that would have been payable during such time (or pro rata
amount of such bonus for any partial Company fiscal year) with the bonus for any
fiscal year or partial year to be paid after the end of such fiscal or partial year
and within two and one-half (2-1/2) months thereafter. Notwithstanding the
foregoing, all payments to be made or benefits to be provided under this Section are
subject to the provisions of Section 5(f) below.
	 
	9.	 	Section 5(b) of the Agreement is amended by adding the following to the end thereof:
	 
	 	 	Additionally, all of Executive’s outstanding stock options shall remain outstanding
until the original expiration date of the stock options (disregarding any earlier
expiration date based on Executive’s termination of employment).
	 
	10.	 	Section 5(c) of the Agreement is amended in its entirety to read as follows::
	 
	 	 	The Company shall continue to provide Executive on a monthly basis with group and
additional life insurance coverage, no less frequently than monthly, for a period of
twenty-four (24) months immediately following termination of employment.
	 
	11.	 	Section 5(d) of the Agreement is amended in its entirety to read as follows:
	 
	 	 	The Company shall continue to provide Executive and his family with group medical
insurance coverage, no less frequently than monthly, under the Company’s medical
plans (as the same may change from time to time) or other substantially similar
health insurance for a period of twenty-four (24)months immediately following
termination of employment.
	 
	12.	 	Section 5(e) of the Agreement is amended in its entirety to read as follows:
	 
	 	 	The Company shall continue to provide Executive coverage, no less frequently than
monthly, under the Company’s group disability plan for a period of twenty-four (24)
months immediately following termination of employment (subject in the case of
long-term disability to the availability of such coverage under Company’s insurance
policy).
	 
	13.	 	Section 5(f) of the Agreement is amended in its entirety to read as follows:






(f) Notwithstanding any other provisions of this Agreement, it is intended that any
payment or benefit which is provided pursuant to or in connection with this
Agreement and which is considered to be nonqualified deferred compensation subject
to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), will
be provided and paid in a manner, and at such time, as complies with Section 409A of
the Code. For purposes of this Agreement, all rights to payments and benefits
hereunder shall be treated as rights to receive a series of



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separate payments and benefits to the fullest extent allowed by Section 409A of the
Code. If Executive is a key employee (as defined in Section 416(i) of the Code
without regard to paragraph (5) thereof) and any of Company’s stock is publicly
traded on an established securities market or otherwise, then the payment of any
amount or provision of any benefit under this Agreement which is considered to be
nonqualified deferred compensation subject to Section 409A of the Code shall be
deferred for six (6) months after the Termination Date or, if earlier, Executive’s
death (the “409A Deferral Period”), as required by Section 409A(a)(2)(B)(i) of the
Code. In the event payments are otherwise due to be made in installments or
periodically during such 409A Deferral Period, the payments which would otherwise
have been made in the 409A Deferral Period shall be accumulated and paid in a lump
sum as soon as the 409A Deferral Period ends, and the balance of the payments shall
be made as otherwise scheduled. In the event, benefits are otherwise to be provided
hereunder during such 409A Deferral Period, any such benefits may be provided during
the 409A Deferral Period at Executive’s expense, with Executive having a right to
reimbursement for such expense from the Company as soon as the 409A Deferral Period
ends, and the balance of the benefits shall be provided as otherwise scheduled. For
purposes of this Agreement, Executive’s termination of employment shall be construed
to mean a “separation from service” within the meaning of Section 409A of the Code
where it is reasonably anticipated that no further services will be performed after
such date or that the level of bona fide services Executive would perform after that
date (whether as an employee or independent contractor) would permanently decrease
to less than fifty percent (50%) of the average level of bona fide services
performed over the immediately preceding thirty-six (36)-month period. Without
limitation, if any payment or benefit which is provided pursuant to or in connection
with this Agreement and which is considered to be nonqualified deferred compensation
subject to Section 409A of the Code fails to comply with Section 409A of the Code,
and Executive incurs any additional tax, interest and penalties under Section 409A
of the Code, Company will pay Executive an additional amount so that, after paying
all taxes, interest and penalties on such additional amount, Executive has an amount
remaining equal to such additional tax, interest and penalties. All payments to be
made to Executive pursuant to the immediately preceding sentence shall be payable no
later than when the related taxes, interest and penalties are to be remitted. Any
right to reimbursement incurred due to a tax audit or litigation addressing the
existence or amount of any tax liability addressed in the immediately preceding
sentence must be made no later than when the related taxes, interest and penalties
that are the subject of the audit or litigation are to be remitted to the taxing
authorities or, where no such taxes, interest and penalties are remitted, within
thirty (30) days of when the audit is completed or there is a final non-appealable
settlement or resolution of the litigation.




	14.	 	Section 5(h) of the Agreement is amended by adding at the end thereof the following:




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	 	 	Executive will be required to execute and not revoke the Company’s standard written
release of any and all claims against the Company and all related parties with
respect to all matters arising out of Executive’s employment by the Company (other
than as described above) no later than thirty (30) days following Executive’s
termination of employment (or such later time as the Company may permit). If the
Executive does not provide such release, with the period for revoking same having
already expired, then Company shall not be required to pay any further amounts
pursuant to this Section 5 and Executive will be required to return to the Company
any amounts previously paid pursuant to this Section 5.
	 
	15.	 	Section 6(a) of the Agreement is amended by adding to the end thereof the following:
	 
	 	 	The Company shall pay the amounts set forth in (1) and (2) above in one lump sum
payment as soon as administratively practicable (and within thirty (30) days)
following Executive’s termination of employment. The benefits provided under (3)
above shall be provided no less frequently than monthly following the date of
termination of employment. Additionally, Executive’s outstanding stock options
shall remain outstanding until the original expiration date of the stock options
(disregarding any earlier expiration date based on Executive’s termination of
employment). Notwithstanding the foregoing, all payments to be made and benefits to
be provided under this Section are subject to the provisions of Section 5(f) above.
	 
	16.	 	Section 6(b) of the Agreement is amended in its entirety to read as follows:
	 
	 	 	“Change of Control” shall mean the date as of which: (i) there shall be consummated
(1) any consolidation or merger of the Company to which the Company is not the
continuing or surviving corporation or pursuant to which shares of the Company’s
common 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 common stock
immediately prior to the merger own more than 50% of the total fair market value or
total voting power of the continuing or surviving entity, or (2) any sale, lease,
exchange or other transfer (in one transaction or a series of related transactions)
of all, or substantially all, of the assets of the Company or (ii) the stockholders
of the Company approve any plan or proposal for the liquidation or dissolution of
the Company; or (iii) otherwise (any person) as such term is used in Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934, as amended. (the “Exchange
Act”)), shall become the beneficial owner (within the meaning of Rule 13d-3 under
the Exchange Act) of 30% or more of the Company’s outstanding common stock (in a
single transaction or within twelve (12) months from the date of the final
acquisition) or (iv) during any one year, individuals who at the beginning of such
period constitute the entire Board of Directors of the Company shall cease for any
reason to constitute a majority thereof unless the election, or the nomination for
election by the Company’s stockholders, of each new director was approved by a vote
of at least two-thirds of the directors still then in office who were directors at
the beginning of the




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	 	 	period. This definition of “Change in Control” is intended to comply with the
definition of a change in the ownership or effective control of the Company or in
the ownership of a substantial portion of the assets of the Company within the
meaning of Section 409A(a)(2)(A)(v) of the Code and shall be construed consistent
with that intent.




17.    Sections 6(e), (f) and (g) are deleted amended in their entirety and replaced with new Section
(e) as follows:





	 	 	Company will pay to Executive the amount of any excise taxes, penalties and interest
imposed on Executive under Section 4999 of the Code 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, penalties and interest imposed on
Executive by reason of payments to Executive under this Section. All payments to be
made to Executive under this Section shall be payable no later than when the related
taxes are to be remitted. Any right to reimbursement incurred due to a tax audit or
litigation addressing the existence or amount of a tax liability under this Section
must be made no later than when the related taxes that are the subject of the audit
or litigation are to be remitted to the taxing authorities or, where no such taxes
are remitted, within thirty (30) days of when the audit is completed or there is a
final and non-appealable settlement or resolution of the litigation.




18.    Section 7 and 8 of the Agreement are deleted in their entirety and replaced with new Section 7
to read as follows:





(a) As used in this Section:




“Business of Company” means providing products and services to broadband internet
service providers which support a full range of integrated voice, video and
high-speed data services to the subscribers of such providers.




“Restricted Period” means the period beginning on the Termination Date and ending
twelve (12) months after the Termination Date.




“Restricted Territory” means, and is limited to, the following Metropolitan
Statistical Areas: (1) Atlanta — Sandy Springs — Marietta, (2) Denver — Aurora, (3)
Portland — Vancouver — Beaverton, (4) Philadelphia — Camden — Wilmington, (5) New
York — Northern New Jersey — Long Island, (6) San Francisco — Oakland — Fremont, (7)
Los Angeles — Long Beach — Santa Ana, and (8) St. Louis. Executive acknowledges and
agrees that this is the area in which the Company does business at the time of
execution of this Agreement, and in which Executive will have responsibility, at a
minimum, on behalf of the Company.




“Material Contact” means contact in person, by telephone or by paper or electronic
correspondence, in furtherance of the business interests of Company.



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(b) Executive agrees that during Executive’s employment hereunder and during the
Restricted Period, Executive shall not, within the Restricted Territory, perform
services on his own behalf or on behalf of any other person or entity, which are the
same as or similar to those he provided to Company and which support any business
activities which compete with the Business of Company.




(c) Executive agrees that during Executive’s employment hereunder and during the
Restricted Period, Executive shall not, directly or indirectly, solicit any actual
or prospective customers of Company with whom Executive had Material Contact, for
the purpose of selling any products or services which compete with the Business of
Company.




(d) Executive agrees that during Executive’s employment hereunder and during the
Restricted Period, Executive shall not, directly or indirectly, solicit any actual
or prospective vendor of Company with whom Executive had Material Contact, for the
purpose of providing products or services in support of any business activities
which compete with the Business of Company.




(e) Executive agrees that during Executive’s employment hereunder and during the
Restricted Period, Executive shall not, directly or indirectly, solicit or induce
any employee or independent contractor of Company with whom Executive had Material
Contact to terminate such employment or contract with Company.




Notwithstanding the foregoing, it is understood and agreed that, without limitation
on other available remedies, the restrictions on Executive set forth in this Section
7(b), (c), (d) and (e) hereof shall not be applicable at any time that Company is in
breach of its contractual obligations to Executive under this Agreement or the ARRIS
Group, Inc. Supplemental Retirement Benefits Plan (the “Excess Benefit Plan”)
following the thirty (30) days after being notified in writing by Executive of such
breach and failure of Company to cure same. In the event Company cures such breach,
the restrictions set forth in Sections 7(b), (c), (d) and (e) hereof shall continue
pursuant to their terms as if such breach never occurred.




	19.	 	Section 10 of the Agreement is amended in its entirety to read as follows:
	 
	 	 	In the event that Executive violates any of the provisions of Sections 7 or 9 hereof
or fails to provide the notice required by Section 4(d) hereof, the Company shall be
entitled to receive from Executive the profits, if any, received by Executive upon
exercise of any Company granted stock options or stock appreciation rights or upon
lapse of the restrictions on any grant or restricted stock to the extent such
options or rights were exercised, or such restrictions lapsed, subsequent to six
months prior to the termination of Executive’s employment.
	 
	20.	 	New Section 14 of the Agreement is added to read as follows:




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14. Rabbi Trust. The Company will establish an irrevocable grantor trust
(as described in Section 671 of the Internal Revenue Code) for the purpose of
accumulating assets to provide for any retirement obligations owed to Executive
under the Excess Benefit Plan. The assets and income of such trust shall be subject
only to the claims of the creditors of the Company in the event of the Company’s
insolvency as defined in Rev. Proc. 92-64, 1992-2 C.B. 422. The establishment of
such trust shall not affect the Company’s liability to pay benefits except that any
liability under the Excess Benefit Plan shall be offset by any payments actually
made to Executive from such trust. The Company will reasonably determine the amount
to contribute to such trust pursuant to the requirements of the Excess Benefit Plan,
and the investment of the assets of the trust shall be made in accordance with the
terms of the trust document. Without limitation, but only to the extent not
prohibited by Section 409A(b) of the Code, the Company agrees to contribute to the
trust pursuant to the requirements of the Excess Benefit Plan sufficient amounts to
provide for the Company’s liability to pay the benefits under such Excess Benefit
Plan no later than when a “Change of Control” occurs. The terms of the trust shall
contain such provisions as may be necessary to qualify the trust as a “rabbi trust”
under applicable rules so that the supplemental retirement benefits may be
considered “unfunded” for purposes of the Employee Retirement Income Security Act of
1974, as amended.



	21.	 	Section 11 of the Agreement is amended by replacing the references to Sections 7, 8, 9 and 10
to Sections 7, 9 and 10.
	 
	22.	 	Section 12(c) of the Agreement is hereby amended by adding the following to the end of Section
12(c) to read as follows:








To the extent the Company is required to reimburse Executive for any such cost, fees
and expenses, the Company shall reimburse such costs, fees and expenses within 90
days following the final determination, award, judgment or settlement.




	23.	 	Except as amended hereby, the Agreement shall remain in full force and effect.
	 
	24.	 	The provisions of Section 13 of the Agreement shall apply to this First Amendment as if set
forth in its entirety herein.





          IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the day first
above written.




	 	 	 	 	 
	 	 	COMPANY
	 
	 	 	 	 
	 	 	Arris Group, Inc.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Lawrence A. Margolis
	 

	 	 	 	 
	 

	 	Name:
	 	Lawrence A. Margolis






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	 	Title:
	 	Executive Vice President of Strategic 
Planning, Administration and Chief Counsel,
Secretary
	 
	 	 	 	 
	 	 	EXECUTIVE
	 
	 	 	 	 
	 	 	/s/ David B. Potts
	 	 	 
	 	 	David B. Potts







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