exv10w14






Exhibit 10.14




Endwave Corporation




SENIOR EXECUTIVE OFFICER SEVERANCE AND RETENTION PLAN




Section 1. Introduction.




     The purpose of this Plan is to encourage Eligible Executive Officers to remain as valued
employees of the Company. This Plan supersedes any other severance or retention benefit plan,
policy or practice maintained by the Company, in which the Eligible Executive Officers would
otherwise be entitled to participate. This Plan amends and restates, and supersedes in its
entirety, the Company’s “Executive Officer Severance and Retention Plan” dated June 5, 2003, as
amended through October 15, 2008. Some of the capitalized terms used in this Plan document are
defined in Section 6 of this Plan. This Plan document is also the Summary Plan Description for the
Plan.



Section 2. Eligibility For Benefits.




     (a) General Provisions. An Eligible Executive Officer will be eligible to receive Severance
Benefits under this Plan in the event his employment with the Company is (a) terminated by the
Company for a reason other than Cause or (b) voluntarily terminated by the Eligible Executive
Officer for Good Reason within 60 days after the initial occurrence of the circumstances giving
rise to Good Reason during the term of this Plan or within six months following any Change in
Control that occurs during the term of this Plan. An Eligible Executive Officer will be eligible to
receive Retention Benefits under this Plan if (1) the Eligible Executive Officer is employed by the
Company upon the occurrence of any Change in Control that occurs during the term of this Plan or
(2) his employment is terminated by the Company without Cause in connection with, and prior to,
such Change in Control. Notwithstanding the foregoing, in the event a Board Composition Change
occurs, an Eligible Executive Officer will be eligible to receive Retention Benefits under this
Plan even if he is not so employed upon the occurrence of a Change in Control, as long as he was
employed by the Company immediately prior to such Board Composition Change. In order to be eligible
to receive Benefits under this Plan, an Eligible Executive Officer must execute a general waiver
and release in the form attached as Exhibit A and such waiver and release must have become
effective as specified in Section 4(c) prior to the payment of such Benefits.



     (b) Exceptions. An Eligible Executive Officer will not be entitled to any Benefits if:



          (1) His employment with the Company is terminated for Cause at any time.




          (2) His employment is voluntarily terminated for a reason other than Good Reason or is
terminated by reason of his death, retirement, failure to return from a leave of absence or
disability.




          (3) The Eligible Executive Officer is offered an identical or substantially equivalent or
comparable position with the Company or an affiliate of the Company. For purposes of the
foregoing, a “substantially equivalent or comparable position” is one that offers




1.









 







the employee substantially the same level of responsibility and compensation: provided, however,
that if any aspect of the new position would constitute Good Reason, the foregoing shall not
preclude the Eligible Executive Officer from being entitled to Benefits under the Plan due to a
termination for Good Reason.




          (4) The Eligible Executive Officer is offered immediate reemployment by a successor to the
Company or an affiliate of the Company or by a purchaser of its assets, as the case may be,
following a change in ownership of the Company or an affiliate of the Company or a sale of
substantially all the assets of a division or business unit of the Company or an affiliate of the
Company: provided, however, that if any aspect of the new position would constitute Good Reason,
the foregoing shall not preclude the Eligible Executive Officer from being entitled to Benefits
under the Plan due to a termination for Good Reason. For purposes of the foregoing, “immediate
reemployment” means that the Eligible Executive Officer ‘s employment with the successor to the
Company or an affiliate of the Company or the purchaser of its assets, as the case may be, results
in uninterrupted employment such that the Eligible Executive Officer does not suffer a lapse in pay
as a result of the change in ownership of the Company or an affiliate of the Company or the sale of
its assets.




Section 3. Amount Of Benefit.




     (a) Retention Benefits. An Eligible Executive Officer’s Retention Benefit will be the
acceleration of vesting of all stock options granted to the Eligible Executive Officer by the
Company as provided in this Section 3(a). Upon a Change in Control, each such option automatically
will become exercisable (without right of repurchase) for that number of shares equal to the number
of shares that would be purchasable under the option (without right of repurchase) at the end of
the period beginning upon such Change in Control and ending on the date specified in the following
table if the Eligible Executive Officer were employed by the Company or its successor at the end of
such period:



	 	 	 
	Title of Eligible Executive Officer	 	 
	upon Change in Control	 	Acceleration Period
	Edward A. Keible, Jr.

	 	Greater of (a) 24 months and (b) 4 months for each full year of employment by the Company
	 
	 	 
	John J. Mikulsky

	 	Greater of (a) 18 months and (b) 3 months for each full year of employment by the Company






     (b) Severance Benefits. An Eligible Executive Officer’s Severance Benefits will be the
benefits set forth in paragraphs (1) through (3) below.



          (1) The Company will provide a severance payment based on the Eligible Executive Officer’s
base salary (and not commissions, bonuses or other variable pay) determined in accordance with the
following table:









	 	 	 	 	 
	 	 	Severance Payment Amount
	 	 	Termination Occurs in	 	Termination Occurs Prior to, and
	Title of Eligible Executive Officer	 	Connection with, or Six Months	 	not in Connection with, a Change
	upon Termination of Employment	 	after, a Change in Control	 	in Control
	Edward A. Keible, Jr.

	 	Greater of (a) 24
months and (b) 4
months for each full
year of employment by
the Company
	 	Greater of (a) 12
months and (b) 2
months for each full
year of employment by
the Company
	 
	 	 	 	 
	John J. Mikulsky

	 	Greater of (a) 18
months and (b) 3
months for each full
year of employment by
the Company
	 	Greater of (a) 9
months and (b) 1.5
months for each full
year of employment by
the Company






2.









 






          (2) If the Eligible Executive Officer is, immediately prior to termination of employment,
enrolled in the Company’s health and/or dental plan and timely elects to continue coverage under
such health or dental plan at the time of the Eligible Executive Officer’s termination of
employment under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company
will pay the COBRA premiums for such health and/or dental insurance coverage for the Eligible
Executive Officer and his then-covered dependents for the period of time following termination of
employment determined in accordance with the following table:




	 	 	 
	Title of Eligible Executive Officer	 	 
	upon Termination of Employment	 	COBRA Benefits Period
	Edward A. Keible, Jr.

	 	Greater of (a) 12 months and (b) 2
months for each full year of
employment by the Company
	 
	 	 
	John J. Mikulsky

	 	Greater of (a) 9 months and (b) 1.5
months for each full year of
employment by the Company





No provision of this Plan will affect the continuation coverage rules under COBRA, except that the
Company’s payment of any applicable premiums during the COBRA benefits period set forth in the
foregoing table will be credited, except for purposes of COBRA premium assistance under the
American Recovery and Reinvestment Act of 2009 (the “ARRA”), as payment by the Eligible Executive
Officer for purposes of his or her payment required under COBRA. The period during which an
Eligible Executive Officer must elect to continue the Company’s group medical or dental coverage at
his or her own expense under COBRA, the length of time during which COBRA coverage will be made
available to the Eligible Executive Officer, and all other rights and obligations of the Eligible
Executive Officer under COBRA (except the obligations of the Company hereunder) will be applied in
the same manner that such rules apply in the absence of this Plan. At the conclusion of the COBRA
benefits period set forth in the foregoing table, the Eligible Executive Officer will be
responsible for the entire payment of premiums required under COBRA for the remainder of the COBRA
period, if any, except to the extent that the Eligible Executive Officer qualifies under the ARRA
as an “assistance eligible individual” who is entitled to COBRA premium assistance without
recapture. For purposes of this Section 3(b)(2), (i) references to COBRA shall be deemed to refer
also to analogous provisions of state law and (ii) any applicable insurance premiums that are paid
by the Company shall not include any amounts payable by an Eligible Executive Officer under an
Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are the
sole responsibility of the Eligible Executive Officer. All other benefits (such as life insurance
and disability coverage) terminate as of the employee’s termination date, except to the extent that
any conversion privilege is available thereunder.




          (3) The acceleration of vesting of all stock options granted to the Eligible Executive Officer
by the Company as provided below. Upon termination of employment, each such option automatically
will become exercisable (without right of repurchase) for that number of shares equal to the number
of shares that would be purchasable under the option (without right of repurchase) at the end of
the period beginning upon termination of employment and ending on the date specified in the
following table if the Eligible Executive Officer were employed by the Company or its successor at
the end of such period:





3.









 








	 	 	 
	Title of Eligible Executive Officer upon	 	 
	Termination of Employment	 	Acceleration Period
	Edward A. Keible, Jr.

	 	Greater of (a) 24 months and (b) 4
months for each full year of
employment by the Company
	 
	 	 
	John J. Mikulsky

	 	Greater of (a) 18 months and (b) 3
months for each full year of
employment by the Company





In the event of a termination of employment in connection with, or within six months after, a
Change in Control, the acceleration of vesting provided by this paragraph (3) is intended to be in
addition to the acceleration of vesting that would have occurred upon the Change in Control
pursuant to Section 3(a).




     (c) Income Tax Liabilities and Withholding. All income tax liabilities with respect to
payments under this Plan will be solely those of the affected Eligible Executive Officer and not
the Company or any other party. The Company will have no obligation to structure Benefit payments
or otherwise administer this Plan in a manner as to reduce or eliminate such liabilities. Payments
under this Plan will be subject to withholdings and deductions as may be required by law.



     (d) Certain Tax Provisions Affecting Amount of Payments. Anything in this Plan to the
contrary notwithstanding, in the event it is determined that any payment by the Company to an
Eligible Executive Officer hereunder (a “Payment”) would cause the Eligible Executive Officer to be
liable for an excise tax pursuant to Section 4999 of the Code, then the aggregate present value of
all amounts payable as Benefits shall be reduced to the Reduced Amount. The “Reduced Amount” will
be an amount, expressed in present value, that maximizes the aggregate present value of Benefits
without causing any Payment to create an excise tax liability under Section 4999 of the Code. For
purposes of this Section 3(d), present value will be determined in accordance with Section
280G(d)(4) of the Code.



     (e) Certain Reductions. The Company in its sole discretion, shall have the authority to
reduce an Eligible Executive Officer’s Benefits, in whole or in part, by any other severance
benefits, pay and benefits provided during a period following written notice of a plant closing or
mass layoff, pay and benefits in lieu of such notice, or other similar benefits payable to the
Eligible Executive Officer by the Company or an affiliate of the Company that become payable in
connection with the Eligible Executive Officer’s termination of employment pursuant to (i) any
applicable legal requirement, including without limitation, the Worker Adjustment and Retraining
Notification Act, the California Plant Closing Act, or any other similar state law, (ii) a written
employment or severance agreement with the Company, or (iii) any Company policy or practice
providing for the Eligible Executive Officer to remain on the payroll for a limited period of time
after being given notice of termination of the Eligible Executive Officer’s employment, and the
Plan Administrator shall so construe and implement the terms of the Plan. Any such reductions that
the Company determines to make pursuant to this Section 3(e) shall be made such that any Benefit
under the Plan shall be reduced solely by any similar type of benefit under such legal requirement,
agreement, policy or practice (i.e. any cash severance Benefits under the Plan shall be reduced
solely by any cash payments or severance benefits under such legal requirement, agreement, policy
or practice, and any continued insurance benefits under the Plan shall be reduced solely by an
continued insurance benefits under such legal requirement, agreement, policy or practice). The
Company’s decision to apply such reductions to the Benefits of one Eligible Executive Officer and
the amount of such reductions shall in no way obligate the



4.









 







Company to apply the same reductions in the same amounts to the Benefits of any other Eligible
Executive Officer, even if similarly situated. In the Company’s sole discretion, such reductions
may be applied on a retroactive basis, with severance Benefits previously paid being
re-characterized as payments pursuant to the Company’s statutory obligation.



Section 4. Time Of Payment; Right of Offset.




     (a) Time of Payment. Eligible Executive Officers will receive acceleration of vesting
Benefits upon a Change in Control (in the case of Retention Benefits pursuant to Section 3(a)) or
upon termination of employment (in the case of Severance Benefits pursuant to Sections 3(b)(3)).
Subject to adjustment pursuant to this Section 4, severance payments pursuant to Section 3(b)(1)
will be made in the form of equal installment payments on the Company’s regularly scheduled payroll
payment dates. COBRA Benefit payments pursuant to Section 3(b)(2) will be made at times deemed
appropriate by the Plan Administrator.



     (b) Acceleration of Severance Payments. Notwithstanding the payment schedule set forth in
Section 4(a), the timing of Severance payments may be accelerated in the following circumstances:



          (1) Acceleration of Portion of In-Process Severance Payments upon a Change in Control. If an
Eligible Executive Officer’s employment terminates prior to the effective date of a Change in
Control and the Company has commenced to pay but has not yet completed paying all severance
payments that would be made to the Eligible Executive Officer in accordance with the schedule set
forth in Section 4(a) at the time a subsequent Change in Control occurs, then upon the effective
date of such Change in Control the Company will pay the Exempted Amount (as defined below) to such
Eligible Executive Officer in a lump sum.




          (2) Acceleration of Portion of Severance Payments upon Termination of Employment after a
Change in Control. If an Eligible Executive Officer’s employment terminates on or after the
effective date of a Change in Control then upon the effective date of such termination of
employment (subject, however, to the release described in Section 2(a) first becoming effective)
the Company will pay the Exempted Amount (as defined below) to such Eligible Executive Officer in a
lump sum upon termination of employment.




          (3) Resumption of Installment Payments. The Company will pay the Remaining Amount, if any,
according to the installment schedule set forth in Section 4(a), beginning at the time the Exempted
Amount would have been paid in full if such amount were paid in accordance with the installment
schedule set forth in Section 4(a).




          (4) Definition of “Exempted Amount” and “Remaining Amount.” For the purposes of this Section
4(b):




               (A) “Exempted Amount” means the lesser of (a) the total of all severance payments owed but not
yet made to the Eligible Executive Officer on the effective date of a Change in Control (in the
case of Section 4(b)(1)) or termination of employment (in the case of Section 4(b)(2)) and (b) the
maximum amount of severance payments described in the last sentence of Section 4(c)(1). .



5.









 





               (B) “Remaining Amount” means the positive difference, if any, between (i) the total of all
severance payments owed but not yet made to the Eligible Executive Officer on the effective date of
a Change in Control (in the case of Section 4(b)(1)) or termination of employment (in the case of
Section 4(b)(2)) and (ii) the Exempted Amount.



     (c) Limitations. Notwithstanding anything to the contrary set forth herein:



          (1) Any Benefits provided under the Plan that constitute “deferred compensation” within the
meaning of Section 409A of the Code and any state law of similar effect (collectively “Section
409A”) shall not commence in connection with an Eligible Executive Officer’s termination of
employment unless and until the Eligible Executive Officer has also incurred a “separation from
service” (as such term is defined in Treasury Regulations Section 1.409A-1(h) (“Separation from
Service”), unless the Company reasonably determines that such amounts may be provided to the
Eligible Executive Officer without causing the Eligible Executive Officer to incur the adverse
personal tax consequences under Section 409A.




          (2) (i) no Benefit payment will be made, and no Benefit will be effective, under this Plan
prior to the last day of any waiting period or revocation period as required by applicable law in
order for the general waiver and release required by Section 2(a) of this Plan to be effective, and
(ii) if the Company determines that payments of any Benefits provided to an Eligible Executive
Officer pursuant to the Plan (any such payments, the “Plan Payments”) constitute “deferred
compensation” under Section 409A and if the Eligible Executive Officer is a “specified employee” of
the Company, as such term is defined in Section 409A(a)(2)(B)(i) (a “Specified Employee”), then,
solely to the extent necessary to avoid the adverse personal tax consequences under Section 409A,
the timing of the Plan Payments will be delayed as follows: on the earliest to occur of (1) the
date that is six (6) months and one (1) day after the date of the Eligible Executive Officer’s
Separation From Service, and (2) the date of the Eligible Executive Officer’s death (such earliest
date, the “Delayed Initial Payment Date”), the Company shall (A) pay the Eligible Executive Officer
a lump sum amount equal to the sum of the Plan Payments that the Eligible Executive Officer would
otherwise have received through the Delayed Initial Payment Date if the commencement of the payment
of the Plan Payments had not been delayed pursuant to this Section 4(a) and (B) commence paying the
balance of the Plan Payments in accordance with the applicable payment schedule. Prior to the
imposition of any delay on the Plan Payments as set forth above, it is intended that (i) each
installment of the Plan Payments be regarded as a separate “payment” for purposes of Treasury
Regulations Section 1.409A-2(b)(2)(i), (ii) all Plan Payments satisfy, to the greatest extent
possible, the exemptions from the application of Section 409A provided under Treasury Regulations
Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii), (iii) the Plan Payments consisting of COBRA
premiums also satisfy, to the greatest extent possible, the exemption from the application of
Section 409A provided under Treasury Regulations Section 1.409A-1(b)(9)(v), and (iv) the Exempted
amount may be paid pursuant to Section 4(b).




          (3) In no event shall payment of any Plan Payments under the Plan be made prior to an Eligible
Executive Officer’s termination date or prior to the effective date of the release described in
Section 2(a). If the Company determines that any Plan Payments constitute “deferred compensation”
under Section 409A, and the Eligible Executive Officer’s Separation from Service occurs at a time
during the calendar year when the release described in Section 2(a) could become effective in the
calendar year following the calendar year in which the Eligible




6.









 







Executive Officer’s Separation from Service occurs, then regardless of when the release is returned
to the Company and becomes effective, the release will not be deemed effective any earlier than the
latest permitted effective date (the “Release Deadline”). If the Company determines that any Plan
Payments constitute “deferred compensation” under Section 409A, then except to the extent that
payments may be delayed until the Delayed Initial Payment Date pursuant to Section 4(c)(2), on the
first regular payroll date following the effective date of an Eligible Executive Officer’s release,
the Company shall (A) pay the Eligible Executive Officer a lump sum amount equal to the sum of the
Plan Payments that the Eligible Executive Officer would otherwise have received through such
payroll date but for the delay in payment related to the effectiveness of the release and (B)
commence paying the balance, if any, of the Plan Payments in accordance with the applicable payment
schedule.




     (d) Right of Offset. If an Eligible Executive Officer is indebted to the Company at the time
any cash Benefits are payable, the Company reserves the right to offset any such Benefits under
this Plan by the amount of such indebtedness.



Section 5. Right To Interpret, Amend and Terminate Plan; Other Arrangements; Binding Nature Of Plan.




     (a) Exclusive Discretion. The Plan Administrator will have the exclusive discretion and
authority (1) to establish rules, forms and procedures for the administration of this Plan, (2) to
construe and interpret this Plan and (3) to decide any and all questions of fact, interpretation,
definition, computation or administration arising in connection with the operation of this Plan
including, but not limited to, the eligibility to participate in this Plan and the amount of
Benefits paid under this Plan. Such rules, interpretations, computations and other actions of the
Plan Administrator will be binding and conclusive on all persons.



     (b) Term Of Plan; Amendment Or Termination; Binding Nature Of Plan.



          (1) Subject to the provisions of Section 5(b)(2), this Plan will be effective until six months
after the first Change in Control has occurred; provided, however, that the Company’s obligations
to provide Benefits hereunder shall survive until all such Benefits have been paid.




          (2) This Plan may not be amended without the written consent of the Plan Administrator and
each Eligible Executive Officer affected by such amendment. This Plan will constitute a
contractual right to the Benefits to which such Eligible Executive Officer is entitled hereunder,
enforceable by the Eligible Executive Officer against the Company.




          (3) Any action amending or terminating this Plan will be in writing and executed by an officer
of the Company duly authorized by the Plan Administrator and any Eligible Executive Officers whose
consent is required.




     (c) Other Severance and Retention Arrangements. The Company reserves the right to make other
arrangements regarding severance and retention benefits in special circumstances.



     (d) Binding Effect On Successor To Company. This Plan will be binding upon any successor to
or assignee of the Company or its business or assets, whether direct or indirect, by



7.









 







Change in Control or otherwise. Any such successor or assignee will be required to perform the
Company’s obligations under this Plan. In such event, the term “Company,” as used in this Plan,
will mean the Company as hereinafter defined and any successor or assignee as described above which
by reason hereof becomes bound by the terms and provisions of this Plan.



Section 6. Definitions.




     Capitalized terms used in this Plan have the following meanings:



     (a) Benefits means Retention Benefits and Severance Benefits.



     (b) Board Composition Change means the occurrence of a change in the Board of Directors of the
Company in which the individuals who constituted the Board of Directors of the Company at the
beginning of the two-year period immediately preceding such change (together with any other
director whose election by the Board of Directors of the Company or whose nomination for election
by the stockholders of the Company was approved by a vote of a majority of the directors then in
office either who were directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a majority of the
directors then in office.



     (c) Cause means misconduct, including but not limited to: (1) conviction of any felony or any
crime involving moral turpitude or dishonesty; (2) participation in a fraud or act of dishonesty
against the Company; (3) any conduct that, based upon a good faith and reasonable factual
investigation and determination by the Company’s Board of Directors, demonstrates a gross unfitness
to serve; (4) any conduct that, based upon a good faith and reasonable factual investigation and
determination by the Company’s Board of Directors, consists of willful and repetitive acts having
the effect of injuring the business or reputation of the Company or any of its affiliates; or (5)
intentional, material violation of any contract between the Company and an Eligible Executive
Officer or any statutory duty owed by an Eligible Executive Officer to the Company that is not
corrected within 30 days after written notice to the Eligible Executive Officer. A physical or
mental disability will not constitute “Cause.”



     (d) Change in Control means any of the following:



          (1) a merger or consolidation of the Company after which the Company’s stockholders
immediately prior to the merger or consolidation do not have beneficial ownership of at least 50%
of the outstanding voting securities of the new or continuing entity or its parent entity (taking
into account only such stockholders’ ownership of the Company prior to such merger or consolidation
and not any other ownership of the new or continuing entity or its parent entity);




          (2) a transaction or series of related transactions to which the Company is a party and in
which a majority of the outstanding shares of the Company’s capital stock are sold, exchanged or
otherwise disposed of, after which the Company’s stockholders immediately prior to the first of
such transactions do not have beneficial ownership of at least 50% of the outstanding voting
securities of the Company or of the entity for which shares of the Company’s capital stock were
exchanged (in either such case, taking into account only such stockholders’ ownership of the
Company prior to the time such transaction or transactions commenced and not




8.









 







any other ownership of any entity for which shares of the Company’s capital stock were
exchanged); and




          (3) a transaction or series of related transactions in which the Company sells, licenses or
otherwise transfers for value all or substantially all of its assets to a single purchaser or group
of associated purchasers.




     (e) Code means the Internal Revenue Code of 1986, as may be amended from time to time, and the
regulations and other applicable guidance promulgated thereunder.



     (f) Company means Endwave Corporation, a Delaware corporation, and any successor as provided
in Section 5(d) of this Plan.



     (g) Eligible Executive Officer means Edward A. Keible, Jr. and John J. Mikulsky.



     (h) Good Reason means, with respect to an Eligible Executive Officer:



          (1) a material reduction in the Eligible Executive Officer’s rate of compensation (base salary
and bonus target), except a reduction applicable proportionally to all Eligible Executive Officers;




          (2) a substantial diminution in the Eligible Executive Officer’s job responsibilities and
authority (but not merely title) with respect to the Company;




          (3) a requirement that the Eligible Executive Officer relocate to a worksite that is more than
50 miles from his prior worksite; or




          (4) a material breach by the Company or any successor to the Company of any material
provisions of this Plan, including, but not limited to, the failure or refusal of any successor to
the Company to assume the Company’s obligations under this Plan pursuant to Section 5(d).



In order to terminate employment for Good Reason, (i) the Eligible Executive Officer must provide
written notice to the Company of the occurrence of one or more of the foregoing events within 30
days following the initial occurrence of the event, and (ii) the Company shall not be required to
provide any Benefits under the Plan if it is able to remedy such event(s) within a period of 30
days following such notice.




     (i) Payment has the meaning given to such term in Section 3(d) of this Plan.



     (j) Plan means this Endwave Corporation Senior Executive Officer Severance and Retention Plan.



     (k) Plan Administrator means the Compensation Committee of the Board of Directors of the
Company.



     (l) Plan Sponsor means the Company as “Plan Sponsor” within the meaning of ERISA.



9.









 





     (m) Reduced Amount has the meaning given to such term in Section 3(d) of this Plan.



     (n) Retention Benefits means the benefits calculated pursuant to Section 3(a) of this Plan.



     (o) Severance Benefits means the benefits calculated pursuant to Section 3(b) of this Plan.



Section 7. No Implied Employment Contract.




     This Plan does not give any employee or other person any right to be retained in the employ of
the Company. The Company’s right to discharge any employee or other person at any time and for any
reason is hereby reserved.



Section 8. Legal Construction.




     This Plan is intended to be governed by and will be construed in accordance with the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), and, to the extent not preempted by
ERISA, the laws of the State of California.



Section 9. Claims, Inquiries And Appeals.




     (a) Applications For Benefits And Inquiries. Any application for Benefits, inquiries about the
Plan or inquiries about present or future rights under the Plan must be submitted to the Plan
Administrator in writing by an applicant (or his authorized representative) at the following
address. The Plan Administrator is the named fiduciary charged with the responsibility for
administering the Plan.



Endwave Corporation

Attn: Plan Administrator for the

Executive Officer Severance and Retention Plan

130 Baytech Drive

San Jose, CA 95134




     (b) Denial Of Claims. In the event that any application for Benefits is denied in whole or in
part, the Plan Administrator must provide the applicant with written or electronic notice of the
denial of the application, and of the applicant’s right to review the denial. Any electronic notice
will comply with the regulations of the U.S. Department of Labor. The notice of denial will be set
forth in a manner designed to be understood by the applicant and will include the following: (i)
the specific reason or reasons for the denial; (ii) references to the specific Plan provisions upon
which the denial is based; (iii) a description of any additional information or material that the
Plan Administrator needs to complete the review and an explanation of why such information or
material is necessary; and (iv) an explanation of the Plan’s review procedures and the time limits
applicable to such procedures, including a statement of the applicant’s right to bring a civil
action under Section 502(a) of ERISA following a denial on review of the claim, as described in
Section 9(d) below. This notice of denial will be given to the applicant within 90 days after the
Plan Administrator receives the application, unless special circumstances require an extension of
time, in which case, the Plan Administrator has up to an additional 90 days for processing the
application. If an extension of time for processing is



10.









 







required, written notice of the extension will be furnished to the applicant before the end of the
initial 90-day period. This notice of extension will describe the special circumstances
necessitating the additional time and the date by which the Plan Administrator is to render its
decision on the application.



     (c) Request For A Review. Any person (or that person’s authorized representative) for whom an
application for Benefits is denied, in whole or in part, may appeal the denial by submitting a
request for a review to the Plan Administrator within 60 days after the application is denied. A
request for a review shall be in writing and shall be addressed to:



Endwave Corporation

Attn: Plan Administrator for the

Executive Officer Severance and Retention Plan

130 Baytech Drive

San Jose, CA 95134



A request for review must set forth all of the grounds on which it is based, all facts in support
of the request and any other matters that the applicant feels are pertinent. The applicant (or his
representative) shall have the opportunity to submit (or the Plan Administrator may require the
applicant to submit) written comments, documents, records, and other information relating to his
claim. The applicant (or his representative) shall be provided, upon request and free of charge,
reasonable access to, and copies of, all documents, records and other information relevant to his
claim. The review shall take into account all comments, documents, records and other information
submitted by the applicant (or his representative) relating to the claim, without regard to whether
such information was submitted or considered in the initial Benefit determination.




     (d) Decision On Review. The Plan Administrator will act on each request for review within
sixty (60) days after receipt of the request, unless special circumstances require an extension of
time (not to exceed an additional sixty (60) days), for processing the request for a review. If an
extension for review is required, written notice of the extension will be furnished to the
applicant within the initial sixty (60) day period. This notice of extension will describe the
special circumstances necessitating the additional time and the date by which the Plan
Administrator is to render its decision on the review. The Plan Administrator will give prompt,
written or electronic notice of its decision to the applicant. Any electronic notice will comply
with the regulations of the U.S. Department of Labor. In the event that the Plan Administrator
confirms the denial of the application for Benefits in whole or in part, the notice will set forth,
in a manner calculated to be understood by the applicant, the following: (i) the specific reason or
reasons for the denial; (ii) references to the specific Plan provisions upon which the denial is
based; (iii) a statement that the applicant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of, all documents, records and other information relevant
to his claim; and (iv) a statement of the applicant’s right to bring a civil action under Section
502(a) of ERISA.



     (e) Rules And Procedures. The Plan Administrator will establish rules and procedures,
consistent with the Plan and with ERISA, as necessary and appropriate in carrying out its
responsibilities in reviewing Benefit claims. The Plan Administrator may require an applicant who
wishes to submit additional information in connection with an appeal from the denial of Benefits to
do so at the applicant’s own expense.



11.









 





     (f) Exhaustion Of Remedies. No legal action for Benefits under the Plan may be brought until
the applicant (i) has submitted a written application for Benefits in accordance with the
procedures described by Section 9(a) above, (ii) has been notified by the Plan Administrator that
the application is denied, (iii) has filed a written request for a review of the application in
accordance with the appeal procedure described in Section 9(c) above, and (iv) has been notified
that the Plan Administrator has denied the appeal. Notwithstanding the foregoing, if the Plan
Administrator does not respond to an applicant’s claim or appeal within the relevant time limits
specified in this Section 9, the applicant may bring legal action for Benefits under the Plan
pursuant to Section 502(a) of ERISA.



Section 10. Basis Of Payments To And From Plan.




     All Benefits under the Plan will be paid by the Company. The Plan will be unfunded, and
Benefits hereunder will be paid only from the general assets of the Company.



Section 11. Other Plan Information.




     (a) Employer And Plan Identification Numbers. The Employer Identification Number assigned to
the Company (which is the “Plan Sponsor” as that term is used in ERISA) by the Internal Revenue
Service is 95-4333817. The Plan Number assigned to the Plan by the Plan Sponsor pursuant to the
instructions of the Internal Revenue Service is 515.



     (b) Ending Date For Plan’s Fiscal Year. The date of the end of the fiscal year for the
purpose of maintaining the Plan’s records is December 31.



     (c) Agent For The Service Of Legal Process. The agent for the service of legal process with
respect to the Plan is the Chairman of the Compensation Committee, Endwave Corporation, 130 Baytech
Drive, San Jose, CA 95134.



Section 12. Statement Of Erisa Rights.




     Participants in this Plan (which is a welfare benefit plan sponsored by Endwave Corporation)
are entitled to certain rights and protections under ERISA. Each Eligible Executive Officer is
considered a participant in the Plan and, under ERISA, is entitled to:



     (a) Receive Information About the Plan and Benefits.



          (1) Examine, without charge, at the Plan Administrator’s office and at other specified
locations, such as worksites, all documents governing the Plan and a copy of the latest annual
report (Form 5500 Series), if applicable, filed by the Plan with the U.S. Department of Labor and
available at the Public Disclosure Room of the Employee Benefits Security Administration;




          (2) Obtain, upon written request to the Plan Administrator, copies of documents governing the
operation of the Plan and copies of the latest annual report (Form 5500 Series), if applicable, and
an updated (as necessary) Summary Plan Description. The Plan Administrator may make a reasonable
charge for the copies; and





12.









 








          (3) Receive a summary of the Plan’s annual financial report, if applicable. The Plan
Administrator is required by law to furnish each participant with a copy of this summary annual
report.




     (b) Prudent Actions by Plan Fiduciaries. In addition to creating rights for Plan
participants, ERISA imposes duties upon the people who are responsible for the operation of the
employee benefit plan. The people who operate the Plan, called “fiduciaries” of the Plan, have a
duty to do so prudently and in the interest of Plan participants and beneficiaries. No one,
including the employer of the participants or any other person, may fire a participant or otherwise
discriminate against participants in any way to prevent a participant from obtaining a Plan Benefit
or exercising his rights under ERISA.



     (c) Enforce Participant Rights. If a participant’s claim for a Plan Benefit is denied or
ignored, in whole or in part, the participant has a right to know why this was done, to obtain
copies of documents relating to the decision without charge, and to appeal any denial, all within
certain time schedules.



     Under ERISA, there are steps a participant can take to enforce the above rights. For instance,
if a participant requests a copy of Plan documents or the latest annual report from the Plan, if
applicable, and does not receive them within thirty (30) days, he may file suit in a Federal court.
In such a case, the court may require the Plan Administrator to provide the materials and pay the
participant up to $110 a day until he receives the materials, unless the materials were not sent
because of reasons beyond the control of the Plan Administrator.



     If a participant has a claim for Benefits that is denied or ignored, in whole or in part, he
may file suit in a state or Federal court.



     If a participant is discriminated against for asserting his rights, the participant may seek
assistance from the U.S. Department of Labor, or he may file suit in a Federal court. The court
will decide who should pay court costs and legal fees. If the participant is successful, the court
may order the person the participant has sued to pay these costs and fees. If the participant
loses, the court may order the participant to pay these costs and fees, for example, if it finds
his claim is frivolous.



     (d) Assistance with Questions. If a participant has any questions about the Plan, the
participant should contact the Plan Administrator. If a participant has any questions about this
statement or about his rights under ERISA, or if a participant needs assistance in obtaining
documents from the Plan Administrator, the participant should contact the nearest office of the
Employee Benefits Security Administration, U.S. Department of Labor, listed in the telephone
directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security
Administration, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210.
Participants may also obtain certain publications about their rights and responsibilities under
ERISA by calling the publications hotline of the Employee Benefits Security Administration.



13.









 





Section 13. Execution.




     To record the amendment and restatement of the Plan as set forth herein, the Company has
caused its duly authorized officer to execute the same this
___ day of ___, 2009.



	 	 	 	 	 
	 	Endwave Corporation

 	 
	 	By:  	/s/ Edward A. Keible, Jr.
 	 
	 	 	Edward A. Keible, Jr. 	 
	 	 	Chief Executive Officer 	 
	 




 









 








Exhibit A




RELEASE AGREEMENT





     I understand and agree completely to the terms set forth in the Endwave Corporation Executive
Officer Severance and Retention Plan (the “Plan”).



     I understand that this Release Agreement, together with the Plan, constitutes the complete,
final and exclusive embodiment of the entire agreement between Endwave Corporation (the “Company”)
and me with regard to the subject matter hereof. I am not relying on any promise or representation
by the Company that is not expressly stated therein. Certain capitalized terms used in this
Release Agreement are defined in the Plan.



     I hereby acknowledge my continuing obligations not to use or disclose confidential or
proprietary information of the Company without prior written authorization from a duly authorized
representative of the Company.



     Except as otherwise set forth in this Release Agreement, in consideration of the benefits I
will receive under the Plan that I am not otherwise entitled to receive, I hereby generally and
completely release the Company and its parents, subsidiaries, successors, predecessors and
affiliates, and its and their partners, members, current and former directors, officers, employees,
stockholders, shareholders, agents, attorneys, predecessors, insurers, affiliates and assigns, from
any and all claims, liabilities and obligations, both known and unknown, that arise out of or are
in any way related to events, acts, conduct, or omissions occurring at any time prior to and
including the date I sign this Release Agreement. This general release includes, but is not
limited to: (a) all claims arising out of or in any way related to my employment with the Company
or the termination of that employment; (b) all claims related to my compensation or benefits from
the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements,
severance pay, fringe benefits, stock, stock options, or any other ownership interests in the
Company; (c) all claims for breach of contract, wrongful termination, and breach of the implied
covenant of good faith and fair dealing; (d) all tort claims, including claims for fraud,
defamation, emotional distress, and discharge in violation of public policy; and (e) all federal,
state, and local statutory claims, including claims for discrimination, harassment, retaliation,
attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended),
the federal Americans with Disabilities Act of 1990 (as amended), the federal Age Discrimination in
Employment Act of 1967 (as amended) (“ADEA”), the federal Employee Retirement Income Security Act
of 1974 (as amended), the federal Family and Medical Leave Act, and the California Fair Employment
and Housing Act (as amended).



     I understand that I am not releasing any claim that cannot be waived under applicable state or
federal law. I am not releasing any rights that I have to be indemnified (including any right to
reimbursement of expenses) arising under applicable law, the certificate of incorporation or
by-laws (or similar constituent documents of the Company), any indemnification agreement between me
and the Company, or any directors’ and officers’ liability insurance policy of the Company.
Nothing in this Agreement shall prevent me from filing, cooperating with, or participating in any
proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or the
California Department of Fair Employment and Housing, except



 









 







that I hereby acknowledge and agree that I shall not recover any monetary benefits in
connection with any such proceeding with regard to any claim released in this Agreement. Nothing
in this Agreement shall prevent me from challenging the validity of the release in a legal or
administrative proceeding.



     I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the ADEA, and that the consideration given under the Plan for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which I was already entitled. I
further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a)
my waiver and release do not apply to any rights or claims that may arise after the date I sign
this Release Agreement; (b) I should consult with an attorney prior to signing this Release
Agreement (although I may choose voluntarily not to do so); (c) I have 21 [or 45, if more than one
employee is terminated; also needs disclosure form] days to consider this Release Agreement
(although I may choose voluntarily to sign this Release Agreement earlier); (d) I have seven days
following the date I sign this Release Agreement to revoke the Release Agreement by providing
written notice to an office of the Company; and (e) this Release Agreement shall not be effective
until the date upon which the revocation period has expired unexercised, which shall be the eighth
day after I sign this Release Agreement.



     In giving the release herein, which includes claims which may be unknown to me at present, I
acknowledge that I have read and understand Section 1542 of the California Civil Code which reads
as follows: “A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if known by him
must have materially affected his or her settlement with the debtor.” I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any jurisdiction of similar
effect with respect to my release of any unknown or unsuspected claims hereunder.



     I hereby represent that I have been paid all compensation owed and for all hours worked, have
received all the leave and leave benefits and protections for which I am eligible, pursuant to the
Family and Medical Leave Act or otherwise, and have not suffered any on-the-job injury for which I
have not already filed a claim.



	 	 	 	 	 
	 

	 	Employee Name (print):	 	 
	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	Signature:	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	Date: