Exhibit 10.1

FIRST AMENDMENT

This FIRST AMENDMENT, dated as of June 6, 2017 (this “ Amendment Agreement ”), to the CREDIT AGREEMENT, dated as of February 23, 2016 (the “ Existing Credit Agreement ” and as amended by this Amendment Agreement, the “ Amended Credit Agreement ”), among COMTECH TELECOMMUNICATIONS CORP., a Delaware corporation (the “ Borrower ”), the lenders and the ISSUING BANK party thereto and CITIBANK, N.A., as Administrative Agent (the “ Administrative Agent ”) (capitalized terms used but not defined herein having the meaning provided in the Existing Credit Agreement).

W I T N E S S E T H

WHEREAS, Citibank, N.A. has been appointed to act as lead arranger and bookrunner in connection with this Amendment Agreement (in such capacities, the “ Arranger ”);

WHEREAS, the Borrower, the Administrative Agent, the Lenders and the Issuing Bank desire to make certain modifications to the Existing Credit Agreement as provided herein:

NOW, THEREFORE, in consideration of the above recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Amendment of the Existing Credit Agreement . Effective as of the First Amendment Effective Date (as defined below), the Existing Credit Agreement is hereby amended as follows:

(a) The following definitions are added in the appropriate alphabetical order to Section 1.01 of the Existing Credit Agreement:

“ First Amendment ” means that certain First Amendment to this Agreement, dated as of the First Amendment Effective Date, among, inter alia , the Borrower, the Administrative Agent and the Lenders party thereto.

“ First Amendment Effective Date ” means June 6, 2017.

(b) The definition of “ Applicable Rate ” in Section 1.01 of the Existing Credit Agreement is amended by replacing the table at the end of the first paragraph thereof in its entirety as follows:

“

Notwithstanding the foregoing, (i) for the period beginning on the First Amendment Effective Date and until the delivery to the Administrative Agent pursuant to Section 5.01(b) of the consolidated financial statements of the Borrower as of and for the fiscal quarter of the Borrower ended April 30, 2017, the Applicable Rate shall be the applicable rate per annum set forth above in Category 3 and (ii) for the purpose of determining the Applicable Rate in connection with the delivery of financial statements for the fiscal quarter ended April 30, 2017, the Leverage Ratio as of April 30, 2017 shall be determined as if the First Amendment Prepayment (as defined in the First Amendment) occurred immediately prior to April 30, 2017.”

(c) The definition of “ Consolidated EBITDA ” in Section 1.01 of the Existing Credit Agreement is amended as follows:

(i) Clause (a)(v) of the definition of “ Consolidated EBITDA ” is amended by adding “(or any amendment thereto)” immediately after “any Indebtedness”.

(ii) Clause (b)(ii)(B) of the definition of “ Consolidated EBITDA ” is amended by adding “, in each case solely to the extent such accrual or cash reserves actually lowered Consolidated EBITDA in the applicable prior period” after “anticipated cash charges”.

(d)    The definition of “ Excess Cash Flow ” in Section 1.01 of the Existing Credit Agreement is amended and restated in its entirety as follows:

““ Excess Cash Flow ” means, for any fiscal year of the Borrower, the excess of (a) Consolidated EBITDA of the Borrower for such fiscal year (for the avoidance of doubt, on an actual basis, and not on a Pro Forma Basis), over (b) the sum, without duplication, of (i) consolidated interest expense for such fiscal year paid in cash, (ii) the amount of any Taxes payable in cash by the Borrower and its Subsidiaries with respect to such fiscal year, (iii) Capital Expenditures made in cash during such fiscal year (except to the extent attributable to the incurrence of Capital Lease Obligations or otherwise financed from Excluded Sources (excluding proceeds of the Revolving Loans)), (iv) any cash dividends paid by the Borrower during such fiscal year pursuant to Section 6.08(a)(iv) or 6.08(a)(vii), (v) cash consideration paid during such fiscal year by the

Borrower or any of its Subsidiaries to make Permitted Acquisitions or other investments (other than in the Borrower or any Subsidiary) permitted under Section 6.04 (except to the extent financed from Excluded Sources), (vi) the aggregate principal amount of Long-Term Indebtedness repaid or prepaid by the Borrower and its Subsidiaries during such fiscal year, excluding (x) Indebtedness in respect of Revolving Loans (unless there is a corresponding reduction in the Aggregate Revolving Credit Commitment), (y) Term Loans prepaid pursuant to subsection (a) or (d) of Section 2.10 (including the Term Loans prepaid pursuant to the First Amendment) and (z) repayments or prepayments of Long-Term Indebtedness financed from Excluded Sources, and (vii) prepayments of Term Loans financed from the proceeds of unsecured Indebtedness. For purposes of calculating Excess Cash Flow for the fiscal year ended July 31, 2016, (I) references in this definition to “fiscal year of the Borrower” and “such fiscal year” shall be replaced with “the period from May 1, 2016 to and including July 31, 2016” and (II) any measurement periods contemplated by the definition of any capitalized term in this definition shall be similarly construed as appropriate to give effect to clause (I) of this sentence. For the avoidance of doubt, for purposes of calculating Excess Cash Flow for the fiscal year ended July 31, 2017, the modifications made to the definition of Consolidated EBITDA in the First Amendment shall apply for the entirety of the fiscal year ended July 31, 2017.”

(e)    The definition of “ Fixed Charge Coverage Numerator ” is amended by adding the following language after “(which amount shall be deemed to be $4,869,000, $4,845,000, $4,844,000 and $4,797,000 for the fiscal quarters ended April 30, 2015, July 31, 2015, October 31, 2015 and January 31, 2016, respectively)” in such definition as follows:

(i) “; provided that, for the purposes of this definition, in determining the amount of any Restricted Payments made pursuant to Section 6.08(a)(vii) prior to February 17, 2017, it shall be assumed that all ordinary quarterly cash dividends paid with respect to the Borrower’s common stock prior to February 17, 2017 were in an amount of $0.10 per share (notwithstanding the actual amount of such dividends)”.

(f) The definition of “ Leverage Ratio ” in Section 1.01 of the Existing Credit Agreement is amended by deleting the words “ minus the lesser of (i) Available Cash on such date and (ii) $50,000,000”.

(g) The definition of “ Permitted Acquisition ” in Section 1.01 of the Existing Credit Agreement is amended as follows:

(i) Clause (g) of the definition of “ Permitted Acquisition ” is amended and restated in its entirety as follows:

“(g) on a Pro Forma Basis after giving effect to such acquisition, the sum of (x) the aggregate unused and available Revolving Commitments and (y) Available Cash shall be no less than $40,000,000; provided that Revolving Commitments under clause (x) above shall be disregarded for purposes of this clause (g) if and to the extent the borrowing thereof would result in the Borrower not being in compliance with Section

6.13 for the last day of the then most recently completed fiscal quarter (assuming such Revolving Commitments were borrowed on such last day).”

(ii) Clause (i) of the definition of “ Permitted Acquisition ” is amended and restated in its entirety as follows:

“(i) the Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such acquisition as of the last day of the most recently ended fiscal quarter of the Borrower, is less than 2.75 to 1.00; provided that this clause (i) shall not apply to any purchase or other acquisition, by merger or otherwise, that is funded solely with proceeds of unsecured Indebtedness.”

(iii) The words “and (k)” in the definition of “ Permitted Acquisition ” are replaced by “, (k) any and all Indebtedness for borrowed money of such Person and its subsidiaries (in the case of an acquisition of Equity Interests) or otherwise assumed by the Borrower or any of its Subsidiaries in connection with such acquisition, in each case at the time of such acquisition, shall be repaid and discharged in full on the closing date thereof and (l)”.

(iv) The words “(a) through (j)” in the definition of “ Permitted Acquisition ” are replaced by “(a) through (k)”.

(h) The definition of “ Quarterly Dividend Amount ” in Section 1.01 of the Existing Credit Agreement is amended and restated in its entirety as follows:

““ Quarterly Dividend Amount ” means, with respect to any fiscal quarter of the Borrower, an amount equal to (i) $2,500,000 plus (ii) if and to the extent the Borrower issues shares of its common stock for cash proceeds during the period beginning on the First Amendment Effective Date and ending immediately prior to the commencement of such fiscal quarter (other than any such issuance to a Subsidiary), an additional amount equal to $0.10 multiplied by the aggregate number of shares of such common stock so issued during such period plus (iii) if the Borrower consummates any Permitted Acquisitions after the First Amendment Effective Date and prior to the commencement of such fiscal quarter and the consideration paid by the Borrower for any such acquisition is solely in the form of shares of its common stock, an additional amount equal to $0.10 multiplied by the number of shares of such common stock so issued as consideration for each such Permitted Acquisition.”

(i) Section 2.10(c)(i) of the Existing Credit Agreement is amended and restated in its entirety as follows:

“in the case of a Prepayment Event described in clause (c) of the definition of the term “Prepayment Event”, 50% of the amount of such Net Proceeds.”

(j) Section 2.10(c)(ii) of the Existing Credit Agreement is amended and restated in its entirety as follows:

“in the case of a Prepayment Event described in clause (d) of the definition of the term “Prepayment Event”, 100% of the amount of such Net Proceeds until the aggregate amount of prepayments made pursuant to this subclause (ii) from and after the First Amendment Effective Date equals $50,000,000 and, thereafter, 50% of the amount of such Net Proceeds.”

(k) Section 2.10(d) of the Existing Credit Agreement is amended by (i) adding “and any prepayments made pursuant to the First Amendment” after “Excluded Sources” and (ii) adding the following sentence at the end thereof:

“Notwithstanding the foregoing, in the event that the Leverage Ratio at the end of a fiscal year is less than 1.75 to 1.00, the Borrower shall not be required to prepay any Term Borrowings pursuant to this clause (d) with any Excess Cash Flow for such fiscal year.”

(l) Section 2.10 of the Existing Credit Agreement is amended by adding the following new clause (g) at the end thereof:

“(g)    In the event that the Borrower consummates a Permitted Acquisition in which the consideration includes the Borrower’s common stock (or other stock of the Borrower), the Borrower shall be required to prepay Term Borrowings (and, following the repayment of all Term Borrowings, any outstanding Revolving Borrowings, without a corresponding reduction in the Aggregate Revolving Credit Commitment) in an aggregate amount equal to the product of (x) $0.60 multiplied by (y) the number of shares of the Borrower’s stock issued in connection with such Permitted Acquisition.”

(m) Section 6.01(a)(xiv) of the Existing Credit Agreement is amended by adding the words “(plus, solely in the event the Borrower incurs Indebtedness that is convertible into common stock of the Borrower pursuant to this clause (xiv), $25,000,000)” after “125,000,000”.

(n) Section 6.08(a)(iii) of the Existing Credit Agreement is amended by replacing the “$1,000,000” contained therein with “$2,000,000”.

(o) Section 6.08(a)(vii) of the Existing Credit Agreement is amended and restated in its entirety as follows:

“(vii)    the Borrower may declare and pay ordinary quarterly cash dividends with respect to the issued and outstanding shares of its common stock (other than shares held in treasury) in an aggregate amount per share not to exceed, in any fiscal quarter of the Borrower, $0.10 per share, so long as (A) the aggregate amount of all such dividends declared and paid in any fiscal quarter of the Borrower does not exceed the Quarterly Dividend Amount for such fiscal quarter, (B) no Default or Event of Default has occurred and is continuing or would result therefrom and (C) after giving effect to any such dividend, the Borrower will be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.12 (as of the last day of the then most recently completed fiscal quarter of the Borrower for which financial statements were required to have been

delivered pursuant to Section 5.01(a) or 5.01(b)) and Section 6.13 (as of the last day of the then most recently completed fiscal quarter of the Borrower) (it being agreed that the dividend in question giving rise to the requirement to be in such compliance with Section 6.12 shall not be included in clause (b)(iii) of the Fixed Charge Coverage Numerator if such clause (b)(iii) otherwise already includes four ordinary quarterly cash dividend payments).”

(p) Section 6.12 of the Existing Credit Agreement is amended and restated in its entirety as follows:

“SECTION 6.12 Fixed Charge Coverage Ratio. The Borrower will not permit the ratio of (a) the Fixed Charge Coverage Numerator to (b) the Fixed Charge Coverage Denominator (the “ Fixed Charge Coverage Ratio ”), in each case for any period of four consecutive fiscal quarters of the Borrower ending on the last day of any fiscal quarter of the Borrower, commencing with the period ending April 30, 2016, to be less than 1.25 to 1.00.”

(q) Section 6.13 of the Existing Credit Agreement is amended and restated in its entirety as follows:

“SECTION 6.13 Leverage Ratio. (a) The Borrower will not permit the Leverage Ratio, calculated as of the last day of any fiscal quarter of the Borrower, commencing with the fiscal quarter of the Borrower ending April 30, 2017, to exceed (subject to Section 6.13(b)) the ratio set forth below opposite the period during which such last day occurs:

(b) In the event that, after the First Amendment Effective Date, the Borrower incurs at least $75,000,000 aggregate principal amount of unsecured Indebtedness for borrowed money (other than from any Subsidiary), then the ratios listed in the table in Section 6.13(a) under the column heading “Ratio” that correspond to (i) the row in the table in Section 6.13(a) that includes the date on which the Borrower first incurs such

aggregate amount of Indebtedness and (ii) each succeeding row listed in the table in Section 6.13(a), if any, shall, in each case, be increased by 0.50 to 1.00.”

SECTION 2. First Amendment Effective Date Payments .

(a) On the First Amendment Effective Date, the Borrower shall (i) prepay Term Borrowings pursuant to Section 2.10(a) of the Amended Credit Agreement in an aggregate principal amount equal to $22,500,000 (the “ First Amendment Prepayment ”) and (ii) pay the accrued interest on the principal amount of Term Borrowings so repaid pursuant to Section 2.12(d) of the Amended Credit Agreement. The Borrower hereby directs, as provided for in Section 2.09(c)(i) of the Amended Credit Agreement, that the First Amendment Prepayment be applied solely to reduce the scheduled repayment of the Term Borrowings to be made on the Term Maturity Date.

(b) On the First Amendment Effective Date, the Borrower shall pay (or cause to be paid) to the Administrative Agent, for the account of each Lender that consents to this Amendment Agreement by May 30, 2017, a consent fee in an amount equal to 0.25% of the aggregate principal amount of such Lender’s outstanding Term Loans and Revolving Commitments (whether or not drawn) on the First Amendment Effective Date (such principal amount being determined immediately after the First Amendment Prepayment), which fee will be earned and due and payable in full on the First Amendment Effective Date.

SECTION 3. Conditions to Effectiveness of Agreement . The amendment of the Existing Credit Agreement and associated provisions set forth herein shall become effective as of the first date on which the following occur or have been waived in accordance with Section 9.02 of the Existing Credit Agreement (the “ First Amendment Effective Date ”):

(a) The Administrative Agent shall have received duly executed counterparts of (i) this Amendment Agreement from (A) the Borrower, (B) the Lenders, (C) the Issuing Bank and (D) the Administrative Agent and (ii) the Reaffirmation Agreement attached hereto from each Loan Party.

(b) The Borrower shall have delivered to the Administrative Agent a written notice of prepayment with respect to the First Amendment Prepayment as required by Section 2.10(f) of the Existing Credit Agreement. The Borrower shall have paid to the Administrative Agent, for the account of the applicable payees, all fees, principal, accrued interest and other amounts, in each case, due and payable on or prior to the First Amendment Effective Date pursuant to this Amendment Agreement or as separately agreed by the Borrower and the Arranger, and the Borrower shall also have reimbursed all reasonable and invoiced out-of-pocket expenses of the Administrative Agent and the Arranger relating hereto (including those of counsel to the Administrative Agent and the Arranger).

(c) At the time of and immediately after giving effect to this Amendment Agreement, no Default or Event of Default shall have occurred and be continuing or would result therefrom.

(d) The representations and warranties made or deemed to be made in Section 4 of this Amendment Agreement shall be true and correct in all material respects, except for any

such representation or warranty that is qualified by materiality or by reference to Material Adverse Effect, which shall be true and correct in all respects.

(e) The Administrative Agent shall have received a certificate, dated the First Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying to the matters set forth in clauses (c) and (d) of this Section 3.

The Administrative Agent shall notify the Borrower and the Lenders of the First Amendment Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Amendment Agreement shall not become effective if each of the conditions set forth or referred to in this Section 3 has not been satisfied at or prior to 11:59 p.m., New York City time, on June 6, 2017 (it being understood that any such failure of this Amendment Agreement to become effective will not affect any rights or obligations of any Person under the Existing Credit Agreement).

SECTION 4. Representations and Warranties . The Borrower hereby represents and warrants to the Administrative Agent and each Lender on the First Amendment Effective Date that:

(a) This Amendment Agreement has been duly authorized, executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

(b) The representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except for any such representation or warranty that is qualified by materiality or by reference to Material Adverse Effect, which are true and correct in all respects, in each case on and as of the First Amendment Effective Date with the same effect as if made on and as of the First Amendment Effective Date (except for any such representation or warranty that by its terms is made only as of an earlier date, which representation and warranty is true and correct in all material respects as of such earlier date, except for any such representation and warranty that is qualified by materiality or by reference to Material Adverse Effect, which are true and correct in all respects as of such earlier date), and except that the phrase “Immediately after the consummation of Transactions to occur on the Effective Date” in Section 3.17 of the Existing Credit Agreement shall be deemed to be “After giving effect to the transactions to be consummated on the First Amendment Effective Date”.

(c) No Default or Event of Default has occurred and is continuing or would result from this Amendment Agreement.

SECTION 5. Effects on Loan Documents; No Novation . (a) Except as expressly set forth herein, this Amendment Agreement shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement, the Amended Credit Agreement or any other Loan Document, all of

which shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.

(b) The execution, delivery and effectiveness of this Amendment Agreement shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents. Nothing herein shall be deemed to entitle the Borrower or any other Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other Loan Document in similar or different circumstances.

(c) On and after the First Amendment Effective Date, each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each reference to the “Credit Agreement”, “thereunder”, “thereof”, “therein” or words of like import (in each case, if referring to the Existing Credit Agreement) in any other Loan Document, shall be deemed a reference to the Amended Credit Agreement. The Borrower and the other parties hereto acknowledge and agree that this Amendment Agreement shall constitute a Loan Document for all purposes of the Existing Credit Agreement, the Amended Credit Agreement and the other Loan Documents. Without limiting the generality of the foregoing, and for the avoidance of doubt, the modifications made to the Existing Credit Agreement pursuant to this Amendment Agreement shall apply to the application of Sections 6.12 and 6.13 of the Amended Credit Agreement for the fiscal quarter ended April 30, 2017 (notwithstanding that the First Amendment Effective Date is after April 30, 2017).

(d) Neither this Amendment Agreement nor the effectiveness of the Amended Credit Agreement shall extinguish the obligations for the payment of money outstanding under the Existing Credit Agreement or discharge or release the Lien or priority of any Security Document or any other security therefor or any guarantee thereof. Nothing herein contained shall be construed as a substitution or novation of the Obligations outstanding under the Existing Credit Agreement or the Security Documents or instruments guaranteeing or securing the same, which shall remain in full force and effect, except as modified hereby. Nothing expressed or implied in this Amendment Agreement, the Amended Credit Agreement or any other document contemplated hereby or thereby shall be construed as a release or other discharge of any Loan Party under any Loan Document from any of its obligations and liabilities thereunder.

SECTION 6. Further Assurances . The Borrower and each other Loan Party agrees to take any further action that is reasonably requested by Administrative Agent to effect the purposes of this Amendment Agreement and the transactions contemplated hereby.

SECTION 7. GOVERNING LAW, JURISDICTION, WAIVER OF JURY TRIAL . THE PROVISIONS OF SECTIONS 9.09 AND 9.10 OF THE EXISTING CREDIT AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS MUTANDIS .

SECTION 8. Counterparts . This Amendment Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment Agreement by facsimile transmission or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Amendment Agreement.

SECTION 9. Notices . All notices, requests and demands to or upon the respective parties hereto shall be given in the manner, and become effective, as set forth in Section 9.01 of the Amended Credit Agreement.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.

SIGNATURE PAGE TO

FIRST AMENDMENT TO

COMTECH TELECOMMUNICATIONS CORP.

CREDIT AGREEMENT

The undersigned, by executing this signature page as a Lender agrees to the terms of this Amendment Agreement and the transactions contemplated hereby and consents to the amendment of the Existing Credit Agreement effected hereby.

Name of Lender:___________________________

For any Lender requiring a second signature line:

Name of Lender:___________________________

REAFFIRMATION

June 6, 2017

Each of the undersigned Loan Parties hereby consents to this Amendment Agreement and the transactions contemplated thereby. Each of the undersigned Loan Parties further (a) affirms and confirms its respective guarantees, pledges, grants of security interests and other obligations under the Amended Credit Agreement and each of the other Loan Documents to which it is a party, in respect of, and to secure, the Obligations and (b) agrees that, notwithstanding the effectiveness of this Amendment Agreement and the transactions contemplated thereby, the Loan Documents to which it is a party, and such guarantees, pledges, grants of security interests and other obligations thereunder, shall continue to be in full force and effect in accordance with the terms thereof.

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[Signature Page to Reaffirmation]

 Exhibit 10.2

CHANGE-IN-CONTROL AGREEMENT

Tier 2

 Dated: [Date]

 

PERSONAL AND CONFIDENTIAL

 

[Name]

[Title]

[Company Name]

 

Dear [Name]:

 

Comtech Telecommunications Corp. considers it essential to the best interests of its stockholders to foster the continued employment of its key management personnel and the key management personnel of its subsidiaries (such subsidiaries, together with Comtech Telecommunications Corp., collectively referred to as the “Company”). Our Board of Directors (the “Board”) recognizes that the possibility of a change in ownership or control of the Company may result in the departure or distraction of key personnel to the detriment of the Company and our stockholders. Therefore, the Board has determined to enter into this agreement with you (i) to encourage and reinforce your attention and dedication to your assigned duties without distraction in the face of the disruptive circumstances that can arise from a possible change in control of the Company, (ii) to enhance our ability to retain you in those circumstances, and (iii) to provide you with fair and reasonable protection from the risks of a change in ownership and control so that you will be in a position to help the Company complete a transaction that would be beneficial to stockholders.

You and the Company agree as follows:

 

1.     Term of Agreement and Protected Period.

 

(a)      Term of Agreement . The period during which this Agreement shall be in effect (the “Term”) shall be the period commencing on [Date] (the “Effective Date”) through the close of business on the second anniversary of the Effective Date; provided , however, that the Term shall be automatically renewed for successive one-year periods unless either party hereto gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then current Term; and provided further , that if a Change in Control has occurred prior to expiration of the then current Term, the Term shall continue until the date that is twenty-four (24) months after such occurrence of a Change in Control. The foregoing notwithstanding, if you remain employed with the Company at the end of the Protected Period (as defined below), the Company's obligations under Section 3(g) (and related provisions) will continue during the defined "Extended Protection Period" after the end of the Protected Period.

 

(b)     Protected Period . The “Protected Period” is the period from the time of occurrence of a Change in Control until the date that is twenty-four (24) months after the occurrence of the Change in Control. Notwithstanding the preceding sentence, the introductory text to Section 3 provides that certain events occurring before a Change in Control shall be deemed to have occurred during the Protected Period.

 2.      Change in Control .

“Change in Control” shall mean the occurrence during the Term of a Change in Control as defined in Section 14.2 of the 2000 Stock Incentive Plan, as such Plan may be amended from time to time.

 

3.      Termination and Resulting Payments .

The Agreement provides no payments or benefits in connection with Terminations which occur prior to a Change in Control, except that, if you are Terminated within 90 days prior to a Change in Control by the Company without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control, or if you Terminate with Good Reason within 90 days prior to a Change in Control (treating the entry by such a Person into such an agreement as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person, then your Termination shall be deemed to have been during the Protected Period and following a Change in Control and shall qualify for the CIC Payments specified in Section 3(b); with payments thereunder to occur on the business day following the 52 ^nd day after the Change in Control (subject to the legal effectiveness of your release), except that, if a payment is deemed to be a deferral of compensation for purposes of Section 409A of the Internal Revenue Code (the "Code") and the Change in Control did not constitute a change in the ownership of the Company, a change in effective control of the Company, or a change in the ownership of a substantial portion of the assets of the Company, as defined in Treasury Regulation § 1.409A-3(i)(5), then settlement shall occur at the date six months after your Date of Termination.

 

(a)      Termination by the Company for Cause, by You Without Good Reason, or by Reason of Death, and Failure to Perform Duties Due to Disability . If during the Protected Period you are Terminated by the Company for Cause, you voluntarily Terminate without Good Reason, Termination occurs due to your death, or Termination results from your failure to perform your duties with the Company due to a disability (for which you qualify for disability benefits), the Company will have no obligation to pay any amounts or benefits to you under this Agreement.

 

(b)      Terminations Triggering CIC Payments . The Company will pay you the payments and provide you the benefits described in this Section 3(b) upon Termination during the Protected Period and during the Term, unless such Termination is (A) by the Company for Cause, (B) by reason of death, (C) due to your failure to perform your duties with the Company due to disability (for which you qualify for disability benefits), or (D) by you without Good Reason. For purposes of this Section 3(b), a Termination shall be deemed to have occurred for Good Reason if, notwithstanding the existence of a valid basis of Termination by you for Good Reason, there has not occurred a Termination by you for Good Reason. The payments or benefits (the “CIC Payments”) provided under this Section 3(b) are as follows:

 

(i) The Company will pay you a lump sum CIC Payment, in cash, equal to the lesser of (x) the CIC Multiple times your Annual Compensation or (y) 2.5 times your Annual Compensation.

(A)    For this purpose, your “CIC Multiple” will be a fraction, the numerator of which is the number of full months that you were employed by the Company prior to Termination and the denominator of which is twelve (12).

(B)    For this purpose, your "Annual Compensation" will be the sum of (A) plus (B), where (A) is the greater of your annual base salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or your annual base salary in effect immediately prior to the Change in Control, and (B) is the amount equal to your average Annual Incentive Awards actually paid or payable or granted for performance in the three fiscal years preceding the year of your Termination; provided that, if you were not employed by the Company or a then wholly owned subsidiary of the Company for the full three-fiscal-year period, your average Annual Incentive Award will be the annual average of the sum of the amounts of your Annual Incentive Award paid or payable or granted for performance in the fiscal year or fiscal years during such period as to which you were employed during the full fiscal year plus the annualized Annual Incentive Award paid or payable or granted in any partial year in such period in which you were employed; and provided further, that for this purpose only annual incentive amounts paid or payable or granted for service to the Company or to a subsidiary that was at the time of such service wholly owned (directly or indirectly) by the Company shall be considered.

 

(ii) Other provisions of any plan or Annual Incentive Award authorization notwithstanding, with respect to your annual incentive award for the fiscal year in progress at your Date of Termination and your Annual Incentive Award for any previously completed year for which your final Annual Incentive Award has not yet been determined by the Board committee or other authorized decision maker with authority to make such determination (the "Committee"):

(A)    If and to the extent that the level of your earning of any such award is based on one or more pre-set performance goals, any such award shall be deemed earned and vested as of the Date of Termination based on the level of actual achievement of your applicable performance goal through the earlier of the end of the performance period or the Date of Termination. For this purpose, the level of actual achievement of your performance goal through the applicable date shall be determined in good faith by the Committee and without the exercise of negative discretion, and any requirement that this determination be based on audited financial results shall not apply.

(B)    If and to the extent that the level of your earning of any such award is not based on pre-set performance goals (i.e., is discretionary), any such award shall be deemed vested as of the date of Termination and shall be deemed earned at a level consistent with the level of annual incentives (as a percentage of base salary) of other executives of comparable rank whose annual incentives are based on pre-set performance goals, provided that the annual incentive shall in no event be less than a pro rata amount of your average prior years' annual incentive amount determined under Section 3(b)(i)(B) above (with prorationing based on the portion of the applicable fiscal year during which you were employed). These determinations shall be made in good faith by the Committee and without the exercise of negative discretion, as provided above.

        

(C)    No amount of such award will be payable based on performance after the Date of Termination under this Section 3(b)(ii). If you are entitled to all or any portion of the annual incentive under any other plan or authorization, the amount payable hereunder will not be paid to the extent it would duplicate such payment of the annual incentive. The provisions regarding the timing of payment under Section 3(d) take precedence over any other payment timing rule applicable to any such annual incentive.

(D)    In connection with this award, you will not be required to execute the Acknowledgement customarily required as a condition of payment of Annual Incentive Awards.

For purposes of this Section 3(b)(ii), if no Annual Incentive Award opportunity has been established for you for the fiscal year in progress at your Date of Termination, your Annual Incentive Award opportunity for that year will be deemed to be identical to the Annual Incentive Award opportunity that was established for the preceding year.

(iii) Your stock options and other equity awards shall be governed by the terms of the applicable plans and award agreements.

(iv)    Subject to your continued compliance with Section 5, for the period under applicable law you are entitled to continue medical coverage following the Date of Termination (the “Continuation Period”), the Company shall offer you continued participation in the Company’s employee medical, dental and vision plans in which you are a participant immediately prior to the Date of Termination (the “Medical Plans”), or such Medical Plans you may elect during any open enrollment period allowable by the Company or the Company’s Medical Plan insurance providers or, if permitted, as elected on the Date of Termination, at the Company’s expense, which coverage may be provided at the Company’s election under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable law. Your participation in the Medical Plans during the Continuation Period shall be subject to your timely election of coverage. If at any time during the Continuation Period such continued coverage is not permitted under the terms and conditions of the applicable Medical Plan, the Company will use commercially reasonable efforts to arrange coverage for you under a medical coverage arrangement that provides benefits substantially equivalent to, and at a cost that is no less favorable to you on an after-tax basis, the benefits you would have been entitled to receive under the Medical Plan (assuming you had elected to participate voluntarily to the maximum extent permissible). Notwithstanding the foregoing, you agree and acknowledge that any continuation coverage provided under a Medical Plan shall be provided in a manner intended to comply with applicable law, including without limitation to avoid any excise tax under Section 4980D of the Code.

(c)     Reduction in Certain Payments If Excise Tax Would Apply.

(i) Notwithstanding any other provision of this Agreement, in the event you become entitled to any amounts or benefits payable in connection with a Change in Control (whether or not such amounts are payable pursuant to this Agreement) (the “Total Change in Control Payments”), if any of such Total Change in Control Payments are subject to the tax (the “Excise

Tax”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Total Change in Control Payments shall be reduced to the Reduced Amount (as defined below) if, but only if, reducing the Total Change in Control Payments would provide to you a greater net after-tax amount of Total Change in Control Payments than would be the case if no such reduction took place.  The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of the Total Change in Control Payments without causing any Change in Control Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code.  Any reduction in Total Change in Control Payments shall be implemented in accordance with Section 3(c)(ii).

(ii) Any reduction in payments under this Section 3(c) shall apply to cash payments and/or vesting of equity awards so as to minimize the amount of compensation that is reduced (i.e., it applies to payments or vesting that to the greatest extent represent parachute payments), with the amount of compensation based on vesting to be measured (to be minimally reduced, for purposes of this provision) by the intrinsic value of the equity award at the date of such vesting.  You will be advised of the determination as to which compensation will be reduced and the reasons therefor, and will be provided a detailed computation of such amounts, and you and your advisors will be entitled to present information that may be relevant to this determination.  No reduction shall be applied to an amount that constitutes a deferral of compensation under Code Section 409A except for amounts that have become payable at the time of the reduction and as to which the reduction will not result in a non-reduction in a corresponding amount that is a deferral of compensation under Code Section 409A that is not currently payable. 

For purposes of determining whether any of the Total Change in Control Payments will be subject to the Excise Tax and the amount of such Excise Tax:

 

For purposes of determining reductions in compensation under this Section 3(c), if any, you will be deemed (A) to pay federal income taxes at the applicable rates of federal income taxation for the calendar year in which the compensation would be payable; and (B) to pay any applicable state and local income taxes at the applicable rates of taxation for the calendar year in which the compensation would be payable, taking into account any effect on federal income taxes from payment of state and local income taxes.  Compensation will be adjusted, if necessary, to provide

for accurate payments or to correct any amounts previously estimated in determining the amount of reductions in compensation under this Section 3(c). However, no adjustments will be made later than the applicable deadline under Code Section 409A if such adjustments would result in a tax penalty under Section 409A.

(iii) The Company shall have the right to control all proceedings with the Internal Revenue Service (or relating thereto) that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option and expense, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which compensation may be reduced hereunder, and you will be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority.  You agree to cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax.

(d)      Time of Payment . The Company’s obligation to make the payments provided for in Section 3(b)(i) and (ii) shall be subject to your execution of a release, in the form attached as Exhibit A, which you have not revoked, such actions to be completed by the end of any applicable revocation period. If and only if such release has become legally effective, on the business day immediately following the 52 ^nd day after your Date of Termination, the Company shall pay the amount specified in Section 3(b)(i) and (ii) in a lump sum. For purposes of compliance with Section 409A of the Internal Revenue Code, the payments under Section 3(b)(i) and (ii) shall each be deemed to be separate payments, and it is intended that the payment under Section 3(b)(i) and (ii) (and any related payment under Section 3(c)) in each case shall be deemed first to be a short-term deferral under Treasury Regulation § 1.409A-1(b)(4), and the payment under Section 3(b)(i) then shall be deemed to be separation pay excluded from being a deferral of compensation to the extent provided under Treasury Regulation § 1.409A-1(b)(9)(iii). If, however, (i) for any reason all or any portion of the payment under Section 3(b)(i) or the payment under Section 3(b)(ii), is deemed to be a non-excluded deferral of compensation under Treasury Regulation § 1.409A-1(b) payable based upon your Termination, and (ii) any of the Company’s stock is publicly traded on an established securities market or otherwise, and (iii) at the Date of Termination you are a “key employee” (as defined in Code Section 416(i) without regard to paragraph (5) thereof), then the affected portion of such payment shall be made on the first business day that is on or after the date that is six months after the date of your separation from service. Likewise, if any other payment or benefit under this Agreement would be subject to a tax penalty under Code Section 409A, such payment or benefit will be payable to you only at the date specified in the preceding sentence if such delay would avoid such tax penalty to you. You shall not be entitled to exercise any influence on the time of any payment payable hereunder, including in any case in which the permitted payment period would include portions of two different tax years.

 

(e)      Notice . During the Protected Period, any purported termination of your employment by the Company or by you shall be communicated by written Notice of Termination to the other party hereto.

 

(f)      Certain Definitions . Except as otherwise indicated in this Agreement, all definitions in this Section 3(f) shall be applicable during the Protected Period only.

 

share awards, restricted stock, stock options or any other equity based award) paid or payable or granted during the applicable fiscal year or any award to the extent specified by the Board (or a committee thereof) in the relevant award agreement or any other equity based awards in each case paid or payable or granted in lieu of annual non-equity incentive compensation for that fiscal year; provided further that, (A) the grant date fair value of any equity based award granted as annual incentive compensation shall be included in the computation of the annual incentive amounts paid or granted in any applicable fiscal year based upon the grant date fair value of such award for accounting purposes and (B) any dividend equivalents paid or payable with respect to such an equity based award shall not be considered annual incentive compensation.

 

 

(A)     The assignment to you of any duties inconsistent in any material adverse respect with your position, authority or responsibilities immediately prior to the occurrence of the Change in Control or any other material adverse change in such position, including authority or responsibilities;

 

(B)     A material reduction by the Company in either (i) your annual base salary in effect immediately prior to the Change in Control and as such base salary thereafter may have been increased, (ii) your annual incentive (as specified below), or (iii) your annual equity awards (as specified below). For this purpose, a reduction of $10,000 in amount or value, on an annualized basis, of your base salary or annual equity awards value, or of these two elements in

the aggregate, will be deemed "material" (other changes may be material in the particular circumstances). A material reduction in your annual incentive will have occurred if the amount actually paid or payable to you for any year, all or part of which is in the Protected Period (including the year in which the Change in Control occurs), is reduced to a level less than 80% of your annual incentive actually paid for performance in the latest full fiscal year before the Change in Control, including the grant date fair value of any equity-based awards granted as a payment of your annual incentive. A material reduction in your annual equity awards will be based on the extent to which the aggregate grant date fair value of equity awards in a given fiscal year during the Protected Period is reduced from the grant date fair values of the annual equity awards granted to you from the Company before the Change in Control (these grants may have occurred in the same fiscal year as the Change in Control). Annual equity awards shall be deemed to have a value determined in a manner consistent with the Company's (or then parent company's) internal valuation method for such awards used at the time of grant. It shall not constitute a material reduction in the annual equity awards for the Company to change the form of such awards to either equity of the surviving parent corporation or cash, provided the value thereof is not materially reduced; or

 

(C)     The relocation of the principal place of your employment to a location more than fifty (50) miles from the location of such place of employment on the Effective Date; except for required travel on the Company’s business to an extent substantially consistent with your business travel obligations prior to the Change in Control.

 

 

(g)     Additional Payment Following the Protected Period . If you remain employed by the Company (which includes any affiliate of the Company) after the Protected Period, in the event that during the "Extended Protection Period" (as defined below) following the Protected Period your employment is Terminated by the Company not for Cause or Terminated by you for Modified Good Reason (as defined in this Section 3(g)), you will be entitled to the payments and benefits under Section 3(b) except that the additional payments under Section 3(b)(i) will be equal to 1.5 times Annual Compensation. For purposes of this Section 3(g), the "Extended Protection Period" means the period from the end of the Protected Period until the close of business on the first anniversary of the end of the Protected Period, provided that the Extended Protection Period will be automatically renewed for successive one-year periods unless either party hereto gives written notice of non-renewal to the other party at least ninety (90) days prior

to the expiration of the then current Extended Protection Period. For purposes of this Section 3(g), "Modified Good Reason" shall mean the occurrence, without your written consent, of either (A) the assignment to you of any duties inconsistent in any material adverse respect with your position, authority or responsibilities 60 days before the end of the Protected Period or any other material adverse change in such position, including authority or responsibilities; (B) the event specified in Section 3(f)(iv)(B); or (C) the event specified in Section 3(f)(iv)(C); provided that, in each case, you have given Notice of Termination to the Company within 90 days after the initial existence of the condition giving rise to your asserted Modified Good Reason, and the Company has failed to fully correct the Modified Good Reason by your Date of Termination (which must be at least 30 days after the Notice is given) specified in the Notice of Termination (such correction by the Company having the effect of canceling such Notice and the resulting Termination), and your Termination occurs within one year after the initial existence of circumstances constituting Modified Good Reason. Other provisions of this Agreement applicable to Section 3(b) (for example, Section 3(d) and Section 6) shall apply to the payments and benefits under this Section 3(g) as well. If you remain employed as specified in this Section 3(g), the obligations of the Company under this Agreement shall continue for the applicable Extended Protection Period after the end of the Protected Period, without regard to provisions specifying the end of the Term.

4. Mitigation .

You will not be required to mitigate the amount of payments provided for under this Agreement by seeking other employment or otherwise, nor shall the amount of payments provided for under this Agreement be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to the Company, or otherwise.

 

5.      Covenants for Protection of Company’s Business . In consideration for the payments and benefits provided by the Company under this Agreement, by your execution of this agreement you agree as follows:

markets, business opportunities, and financial, technical and other data (collectively, the "Confidential Information"). After termination of your employment with the Company for any reason and upon the written request of the Company, you shall promptly return to the Company all originals and/or copies of written or recorded material (regardless of the medium) containing or reflecting any Confidential Information and shall promptly confirm in writing to the Company that such action has been taken. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (A) Information that is already in the public domain at the time of its disclosure to you; (B) Information that, after its disclosure to you, becomes part of the public domain by publication or otherwise other than through your act; and (C) Information that you received from a third party having the right to make such disclosure without restriction on disclosure or use thereof.

If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 5 is excessive in duration or scope or is unreasonable or unenforceable under the laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.

You acknowledge and agree that the Company’s remedies at law for a breach or threatened breach of any of the provisions of Section 5 would be inadequate and, in recognition of this fact, you agree that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, may be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available. Further, in the event you breach any of the foregoing covenants of this Section 5 , in addition to any other remedies available to the Company, to the maximum extent permitted by applicable law, the Company shall have the right to recoup from you, and you shall be obligated to repay to the Company, an amount equal to the actual amount of the CIC Payment paid to you pursuant to Section 3(b)(i) multiplied by the Recoverable Portion. For the purposes of this Section 5, “Recoverable Portion” means a percentage obtained by dividing (i) the number of days remaining in the Restrictive Period from and after the commencement of such breach, by (ii) 365. For the avoidance of doubt, recoupment by the Company pursuant to the immediately preceding sentence shall neither be deemed liquidated damages, nor shall it preclude the Company from seeking or obtaining a judgment against you for damages caused by your breach of the foregoing covenants of this Section 5.

 6. Prior Acknowledgment .  In connection with a Termination which entitles you to CIC Payments pursuant to Section 3(b), your agreement not to voluntarily terminate your employment with the Company or any of its affiliates, which is set forth in any Acknowledgement previously executed by you as a condition of payment of an Annual Incentive Award, shall terminate, shall no longer be a condition of your right to retain such Annual Incentive Award, and shall be of no further force or effect.

7. Miscellaneous .

 

(a)      Successors . The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

(b)      Binding Agreement . This Agreement shall inure to the benefit of and be enforceable by you and your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. In the event of your death, all amounts otherwise payable to you hereunder shall, unless otherwise provided herein, be paid in accordance with the terms of this Agreement to your devisee, legatee or other designee or, if there is no such designee, to your estate.

 

(c)      Notice . Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when (i) personally delivered or (ii) mailed by United States certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth on the first page of this Agreement; provided that all notice to the Company shall be directed to the attention of the Board with a copy to the Chief Executive Officer of the Company, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.

 

(d)      Modifications . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by you and such officer as may be designated by the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the time or at any prior or subsequent time.

 

(e)      Governing Law . THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.

 

(f)      Tax Withholding . Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state or local law.

 

(g)      Surviving Obligations . The obligations of the Company and your obligations under this Agreement shall survive the expiration of this Agreement to the extent necessary to give effect to this Agreement.

 

(h)      Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

(i)      Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

 

(j)      Entire Agreement . This Agreement sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes the provisions of all prior agreements (including any prior Change in Control Agreement between the parties), promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereof with respect to the subject matter contained herein. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. Notwithstanding anything to the contrary in this Agreement, the procedural provisions of this Agreement shall apply to all benefits payable as a result of a Change in Control (or other change in control).

 

If this letter sets forth our agreement on the subject matter hereof, kindly sign and return to the Company the enclosed copy of this letter, which will then constitute our agreement on this subject.

 

 

 

Exhibit A

General Release

For good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, I, for myself and my successors, assigns, heirs and representatives (each, a "Releasing Party"), hereby release and forever discharge Comtech Telecommunications Corp. (the "Company"), its stockholders, officers, directors, employees, agents and attorneys, and their respective successors, assigns, heirs and representatives (each, a "Released Party"), individually and collectively, from any and all claims, demands, causes of action, liabilities or obligations, known or unknown, pending or not pending, liquidated or not liquidated, of every kind and nature whatsoever (collectively, the "Released Claims") which the Releasing Party has, has had or may have against any one or more of the Released Parties arising out of, based upon or in any way, directly or indirectly, related to the Company's business, my employment with the Company or the termination of such employment; provided , however , that this General Release shall have no effect whatsoever upon: (a) the Company's obligations, if any, to pay CIC Payments pursuant to the Change in Control Agreement between the undersigned and the Company, dated [Date] (the “CIC Agreement”) or the rights of the undersigned to enforce such obligations; (b) any and all obligations of the Released Parties to defend, indemnify, hold harmless or reimburse the undersigned under the Indemnification Agreement between the Company and the undersigned, and/or under applicable law and/or under the respective charters and by-laws of the Released Parties, and/or pursuant to insurance policies, if any, for acts or omissions in the undersigned’s capacity as a director, officer and/or employee thereof; and (c) any and all rights the undersigned may have to vested or accrued benefits or entitlements under and in accordance with any applicable plan, agreement, program, award, policy or arrangement of a Released Party.

The Released Claims include, without limitation, (a) all claims arising out of or relating to breach of contract, the Fair Labor Standards Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the National Labor Relations Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act and/or any other federal, state or local statute, law, ordinance, regulation or order as the same may be amended or supplemented from time to time, (b) all claims for back pay, lost benefits, reinstatement, liquidated damages, punitive damages, and damages on account of any alleged personal, physical or emotional injury, and (c) all claims for attorneys' fees and costs.

I agree that I am voluntarily executing this General Release. I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 and that the consideration given for the waiver and release 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 Age Discrimination in Employment Act of 1967, that: (a) my waiver and release specified herein does not apply to any rights or claims that may arise after the date I sign this General Release or my rights with respect to CIC Payments, if any, payable to me pursuant to the CIC Agreement; (b) I have the right to consult with an attorney prior to signing this General Release; (c) I have twenty-one (21) days to consider this General Release (although I may choose to sign it earlier); (d) I have seven (7) days after I sign this General Release to revoke it; and (e) this General Release will not be effective until the date on which the revocation period has expired, which will be the eighth day after I sign this General Release, assuming I have returned it to the Company by such date.

Dated:                                                   

Schedule 5(iii)

[Competitor Entities]

  Exhibit 10.3

 

CHANGE-IN-CONTROL AGREEMENT

Tier 2

 Dated: [Date]

 

PERSONAL AND CONFIDENTIAL

 

[Name]

[Title]

[Company Name]

 

Dear [Name]:

 

Comtech Telecommunications Corp. considers it essential to the best interests of its stockholders to foster the continued employment of its key management personnel and the key management personnel of its subsidiaries (such subsidiaries, together with Comtech Telecommunications Corp., collectively referred to as the “Company”). Our Board of Directors (the “Board”) recognizes that the possibility of a change in ownership or control of the Company may result in the departure or distraction of key personnel to the detriment of the Company and our stockholders. Therefore, the Board has determined to enter into this agreement with you (i) to encourage and reinforce your attention and dedication to your assigned duties without distraction in the face of the disruptive circumstances that can arise from a possible change in control of the Company, (ii) to enhance our ability to retain you in those circumstances, and (iii) to provide you with fair and reasonable protection from the risks of a change in ownership and control so that you will be in a position to help the Company complete a transaction that would be beneficial to stockholders.

You and the Company agree as follows:

 

1.     Term of Agreement and Protected Period.

 

(a)      Term of Agreement . The period during which this Agreement shall be in effect (the “Term”) shall be the period commencing on [Date] (the “Effective Date”) through the close of business on the second anniversary of the Effective Date; provided , however, that the Term shall be automatically renewed for successive one-year periods unless either party hereto gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then current Term; and provided further , that if a Change in Control has occurred prior to expiration of the then current Term, the Term shall continue until the date that is twenty-four (24) months after such occurrence of a Change in Control. The foregoing notwithstanding, if you remain employed with the Company at the end of the Protected Period (as defined below), the Company's obligations under Section 3(g) (and related provisions) will continue during the defined "Extended Protection Period" after the end of the Protected Period.

 

(b)     Protected Period . The “Protected Period” is the period from the time of occurrence of a Change in Control until the date that is twenty-four (24) months after the occurrence of the Change in Control. Notwithstanding the preceding sentence, the introductory text to Section 3 provides that certain events occurring before a Change in Control shall be deemed to have occurred during the Protected Period.

 

 2.      Change in Control .

“Change in Control” shall mean the occurrence during the Term of a Change in Control as defined in Section 14.2 of the 2000 Stock Incentive Plan, as such Plan may be amended from time to time.

 

3.      Termination and Resulting Payments .

The Agreement provides no payments or benefits in connection with Terminations which occur prior to a Change in Control, except that, if you are Terminated within 90 days prior to a Change in Control by the Company without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control, or if you Terminate with Good Reason within 90 days prior to a Change in Control (treating the entry by such a Person into such an agreement as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person, then your Termination shall be deemed to have been during the Protected Period and following a Change in Control and shall qualify for the CIC Payments specified in Section 3(b); with payments thereunder to occur on the business day following the 52 ^nd day after the Change in Control (subject to the legal effectiveness of your release), except that, if a payment is deemed to be a deferral of compensation for purposes of Section 409A of the Internal Revenue Code (the "Code") and the Change in Control did not constitute a change in the ownership of the Company, a change in effective control of the Company, or a change in the ownership of a substantial portion of the assets of the Company, as defined in Treasury Regulation § 1.409A-3(i)(5), then settlement shall occur at the date six months after your Date of Termination.

 

(a)      Termination by the Company for Cause, by You Without Good Reason, or by Reason of Death, and Failure to Perform Duties Due to Disability . If during the Protected Period you are Terminated by the Company for Cause, you voluntarily Terminate without Good Reason, Termination occurs due to your death, or Termination results from your failure to perform your duties with the Company due to a disability (for which you qualify for disability benefits), the Company will have no obligation to pay any amounts or benefits to you under this Agreement.

 

(b)      Terminations Triggering CIC Payments . The Company will pay you the payments and provide you the benefits described in this Section 3(b) upon Termination during the Protected Period and during the Term, unless such Termination is (A) by the Company for Cause, (B) by reason of death, (C) due to your failure to perform your duties with the Company due to disability (for which you qualify for disability benefits), or (D) by you without Good Reason. For purposes of this Section 3(b), a Termination shall be deemed to have occurred for Good Reason if, notwithstanding the existence of a valid basis of Termination by you for Good Reason, there has not occurred a Termination by you for Good Reason. The payments or benefits (the “CIC Payments”) provided under this Section 3(b) are as follows:

 

(i) The Company will pay you a lump sum CIC Payment, in cash, equal to the lesser of (x) the CIC Multiple times your Annual Compensation or (y) 2.5 times your Annual Compensation.

(A)    For this purpose, your “CIC Multiple” will be a fraction, the numerator of which is the number of full months that you were employed by the Company prior to Termination and the denominator of which is twelve (12).

(B)    For this purpose, your "Annual Compensation" will be the sum of (A) plus (B), where (A) is the greater of your annual base salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or your annual base salary in effect immediately prior to the Change in Control, and (B) is the amount equal to your average Annual Incentive Awards actually paid or payable or granted for performance in the three fiscal years preceding the year of your Termination; provided that, if you were not employed by the Company or a then wholly owned subsidiary of the Company for the full three-fiscal-year period, your average Annual Incentive Award will be the annual average of the sum of the amounts of your Annual Incentive Award paid or payable or granted for performance in the fiscal year or fiscal years during such period as to which you were employed during the full fiscal year plus the annualized Annual Incentive Award paid or payable or granted in any partial year in such period in which you were employed; and provided further, that for this purpose only annual incentive amounts paid or payable or granted for service to the Company or to a subsidiary that was at the time of such service wholly owned (directly or indirectly) by the Company shall be considered.

 

(ii) Other provisions of any plan or Annual Incentive Award authorization notwithstanding, with respect to your annual incentive award for the fiscal year in progress at your Date of Termination and your Annual Incentive Award for any previously completed year for which your final Annual Incentive Award has not yet been determined by the Board committee or other authorized decision maker with authority to make such determination (the "Committee"):

(A)    If and to the extent that the level of your earning of any such award is based on one or more pre-set performance goals, any such award shall be deemed earned and vested as of the Date of Termination based on the level of actual achievement of your applicable performance goal through the earlier of the end of the performance period or the Date of Termination. For this purpose, the level of actual achievement of your performance goal through the applicable date shall be determined in good faith by the Committee and without the exercise of negative discretion, and any requirement that this determination be based on audited financial results shall not apply.

(B)    If and to the extent that the level of your earning of any such award is not based on pre-set performance goals (i.e., is discretionary), any such award shall be deemed vested as of the date of Termination and shall be deemed earned at a level consistent with the level of annual incentives (as a percentage of base salary) of other executives of comparable rank whose annual incentives are based on pre-set performance goals, provided that the annual incentive shall in no event be less than a pro rata amount of your average prior years' annual incentive amount determined under Section 3(b)(i)(B) above (with prorationing based on the portion of the applicable fiscal year during which you were employed). These determinations shall be made in good faith by the Committee and without the exercise of negative discretion, as provided above.

(C)    No amount of such award will be payable based on performance after the Date of Termination under this Section 3(b)(ii). If you are entitled to all or any portion of the annual incentive under any other plan or authorization, the amount payable hereunder will not be paid to the extent it would duplicate such payment of the annual incentive. The provisions regarding the timing of payment under Section 3(d) take precedence over any other payment timing rule applicable to any such annual incentive.

(D)    In connection with this award, you will not be required to execute the Acknowledgement customarily required as a condition of payment of Annual Incentive Awards.

For purposes of this Section 3(b)(ii), if no Annual Incentive Award opportunity has been established for you for the fiscal year in progress at your Date of Termination, your Annual Incentive Award opportunity for that year will be deemed to be identical to the Annual Incentive Award opportunity that was established for the preceding year.

(iii) Your stock options and other equity awards shall be governed by the terms of the applicable plans and award agreements.

(iv)    Subject to your continued compliance with Section 5, for the period under applicable law you are entitled to continue medical coverage following the Date of Termination (the “Continuation Period”), the Company shall offer you continued participation in the Company’s employee medical, dental and vision plans in which you are a participant immediately prior to the Date of Termination (the “Medical Plans”), or such Medical Plans you may elect during any open enrollment period allowable by the Company or the Company’s Medical Plan insurance providers or, if permitted, as elected on the Date of Termination, at the Company’s expense, which coverage may be provided at the Company’s election under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable law. Your participation in the Medical Plans during the Continuation Period shall be subject to your timely election of coverage. If at any time during the Continuation Period such continued coverage is not permitted under the terms and conditions of the applicable Medical Plan, the Company will use commercially reasonable efforts to arrange coverage for you under a medical coverage arrangement that provides benefits substantially equivalent to, and at a cost that is no less favorable to you on an after-tax basis, the benefits you would have been entitled to receive under the Medical Plan (assuming you had elected to participate voluntarily to the maximum extent permissible). Notwithstanding the foregoing, you agree and acknowledge that any continuation coverage provided under a Medical Plan shall be provided in a manner intended to comply with applicable law, including without limitation to avoid any excise tax under Section 4980D of the Code.

(c)     Reduction in Certain Payments If Excise Tax Would Apply.

(i) Notwithstanding any other provision of this Agreement, in the event you become entitled to any amounts or benefits payable in connection with a Change in Control (whether or not such amounts are payable pursuant to this Agreement) (the “Total Change in Control Payments”), if any of such Total Change in Control Payments are subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may

hereafter be imposed), the Total Change in Control Payments shall be reduced to the Reduced Amount (as defined below) if, but only if, reducing the Total Change in Control Payments would provide to you a greater net after-tax amount of Total Change in Control Payments than would be the case if no such reduction took place.  The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of the Total Change in Control Payments without causing any Change in Control Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code.  Any reduction in Total Change in Control Payments shall be implemented in accordance with Section 3(c)(ii).

(ii) Any reduction in payments under this Section 3(c) shall apply to cash payments and/or vesting of equity awards so as to minimize the amount of compensation that is reduced (i.e., it applies to payments or vesting that to the greatest extent represent parachute payments), with the amount of compensation based on vesting to be measured (to be minimally reduced, for purposes of this provision) by the intrinsic value of the equity award at the date of such vesting.  You will be advised of the determination as to which compensation will be reduced and the reasons therefor, and will be provided a detailed computation of such amounts, and you and your advisors will be entitled to present information that may be relevant to this determination.  No reduction shall be applied to an amount that constitutes a deferral of compensation under Code Section 409A except for amounts that have become payable at the time of the reduction and as to which the reduction will not result in a non-reduction in a corresponding amount that is a deferral of compensation under Code Section 409A that is not currently payable. 

For purposes of determining whether any of the Total Change in Control Payments will be subject to the Excise Tax and the amount of such Excise Tax:

 

For purposes of determining reductions in compensation under this Section 3(c), if any, you will be deemed (A) to pay federal income taxes at the applicable rates of federal income taxation for the calendar year in which the compensation would be payable; and (B) to pay any applicable state and local income taxes at the applicable rates of taxation for the calendar year in which the compensation would be payable, taking into account any effect on federal income taxes from payment of state and local income taxes.  Compensation will be adjusted, if necessary, to provide for accurate payments or to correct any amounts previously estimated in determining the amount

of reductions in compensation under this Section 3(c). However, no adjustments will be made later than the applicable deadline under Code Section 409A if such adjustments would result in a tax penalty under Section 409A.

(iii) The Company shall have the right to control all proceedings with the Internal Revenue Service (or relating thereto) that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option and expense, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which compensation may be reduced hereunder, and you will be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority.  You agree to cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax.

(d)      Time of Payment . The Company’s obligation to make the payments provided for in Section 3(b)(i) and (ii) shall be subject to your execution of a release, in the form attached as Exhibit A, which you have not revoked, such actions to be completed by the end of any applicable revocation period. If and only if such release has become legally effective, on the business day immediately following the 52 ^nd day after your Date of Termination, the Company shall pay the amount specified in Section 3(b)(i) and (ii) in a lump sum. For purposes of compliance with Section 409A of the Internal Revenue Code, the payments under Section 3(b)(i) and (ii) shall each be deemed to be separate payments, and it is intended that the payment under Section 3(b)(i) and (ii) (and any related payment under Section 3(c)) in each case shall be deemed first to be a short-term deferral under Treasury Regulation § 1.409A-1(b)(4), and the payment under Section 3(b)(i) then shall be deemed to be separation pay excluded from being a deferral of compensation to the extent provided under Treasury Regulation § 1.409A-1(b)(9)(iii). If, however, (i) for any reason all or any portion of the payment under Section 3(b)(i) or the payment under Section 3(b)(ii), is deemed to be a non-excluded deferral of compensation under Treasury Regulation § 1.409A-1(b) payable based upon your Termination, and (ii) any of the Company’s stock is publicly traded on an established securities market or otherwise, and (iii) at the Date of Termination you are a “key employee” (as defined in Code Section 416(i) without regard to paragraph (5) thereof), then the affected portion of such payment shall be made on the first business day that is on or after the date that is six months after the date of your separation from service. Likewise, if any other payment or benefit under this Agreement would be subject to a tax penalty under Code Section 409A, such payment or benefit will be payable to you only at the date specified in the preceding sentence if such delay would avoid such tax penalty to you. You shall not be entitled to exercise any influence on the time of any payment payable hereunder, including in any case in which the permitted payment period would include portions of two different tax years.

 

(e)      Notice . During the Protected Period, any purported termination of your employment by the Company or by you shall be communicated by written Notice of Termination to the other party hereto.

 

(f)      Certain Definitions . Except as otherwise indicated in this Agreement, all definitions in this Section 3(f) shall be applicable during the Protected Period only.

 

paid or payable or granted during the applicable fiscal year or any award to the extent specified by the Board (or a committee thereof) in the relevant award agreement or any other equity based awards in each case paid or payable or granted in lieu of annual non-equity incentive compensation for that fiscal year; provided further that, (A) the grant date fair value of any equity based award granted as annual incentive compensation shall be included in the computation of the annual incentive amounts paid or granted in any applicable fiscal year based upon the grant date fair value of such award for accounting purposes and (B) any dividend equivalents paid or payable with respect to such an equity based award shall not be considered annual incentive compensation.

 

 

(A)     The assignment to you of any duties inconsistent in any material adverse respect with your position, authority or responsibilities immediately prior to the occurrence of the Change in Control or any other material adverse change in such position, including authority or responsibilities;

 

(B)     A material reduction by the Company in either (i) your annual base salary in effect immediately prior to the Change in Control and as such base salary thereafter may have been increased, (ii) your annual incentive (as specified below), or (iii) your annual equity awards (as specified below). For this purpose, a reduction of $10,000 in amount or value, on an annualized basis, of your base salary or annual equity awards value, or of these two elements in the aggregate, will be deemed "material" (other changes may be material in the

particular circumstances). A material reduction in your annual incentive will have occurred if the amount actually paid or payable to you for any year, all or part of which is in the Protected Period (including the year in which the Change in Control occurs), is reduced to a level less than 80% of your annual incentive actually paid for performance in the latest full fiscal year before the Change in Control, including the grant date fair value of any equity-based awards granted as a payment of your annual incentive. A material reduction in your annual equity awards will be based on the extent to which the aggregate grant date fair value of equity awards in a given fiscal year during the Protected Period is reduced from the grant date fair values of the annual equity awards granted to you from the Company before the Change in Control (these grants may have occurred in the same fiscal year as the Change in Control). Annual equity awards shall be deemed to have a value determined in a manner consistent with the Company's (or then parent company's) internal valuation method for such awards used at the time of grant. It shall not constitute a material reduction in the annual equity awards for the Company to change the form of such awards to either equity of the surviving parent corporation or cash, provided the value thereof is not materially reduced; or

 

(C)     The relocation of the principal place of your employment to a location more than fifty (50) miles from the location of such place of employment on the Effective Date; except for required travel on the Company’s business to an extent substantially consistent with your business travel obligations prior to the Change in Control.

 

 

(g)     Additional Payment Following the Protected Period . If you remain employed by the Company (which includes any affiliate of the Company) after the Protected Period, in the event that during the "Extended Protection Period" (as defined below) following the Protected Period your employment is Terminated by the Company not for Cause or Terminated by you for Modified Good Reason (as defined in this Section 3(g)), you will be entitled to the payments and benefits under Section 3(b) except that the additional payments under Section 3(b)(i) will be equal to 1.5 times Annual Compensation. For purposes of this Section 3(g), the "Extended Protection Period" means the period from the end of the Protected Period until the close of business on the first anniversary of the end of the Protected Period, provided that the Extended Protection Period will be automatically renewed for successive one-year periods unless either party hereto gives written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the then current Extended Protection Period. For purposes of this Section

3(g), "Modified Good Reason" shall mean the occurrence, without your written consent, of either (A) the assignment to you of any duties inconsistent in any material adverse respect with your position, authority or responsibilities 60 days before the end of the Protected Period or any other material adverse change in such position, including authority or responsibilities; (B) the event specified in Section 3(f)(iv)(B); or (C) the event specified in Section 3(f)(iv)(C); provided that, in each case, you have given Notice of Termination to the Company within 90 days after the initial existence of the condition giving rise to your asserted Modified Good Reason, and the Company has failed to fully correct the Modified Good Reason by your Date of Termination (which must be at least 30 days after the Notice is given) specified in the Notice of Termination (such correction by the Company having the effect of canceling such Notice and the resulting Termination), and your Termination occurs within one year after the initial existence of circumstances constituting Modified Good Reason. Other provisions of this Agreement applicable to Section 3(b) (for example, Section 3(d) and Section 6) shall apply to the payments and benefits under this Section 3(g) as well. If you remain employed as specified in this Section 3(g), the obligations of the Company under this Agreement shall continue for the applicable Extended Protection Period after the end of the Protected Period, without regard to provisions specifying the end of the Term.

4. Mitigation .

You will not be required to mitigate the amount of payments provided for under this Agreement by seeking other employment or otherwise, nor shall the amount of payments provided for under this Agreement be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to the Company, or otherwise.

 

5.      Covenants for Protection of Company’s Business . In consideration for the payments and benefits provided by the Company under this Agreement, by your execution of this agreement you agree as follows:

    

(collectively, the "Confidential Information"). After termination of your employment with the Company for any reason and upon the written request of the Company, you shall promptly return to the Company all originals and/or copies of written or recorded material (regardless of the medium) containing or reflecting any Confidential Information and shall promptly confirm in writing to the Company that such action has been taken. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (A) Information that is already in the public domain at the time of its disclosure to you; (B) Information that, after its disclosure to you, becomes part of the public domain by publication or otherwise other than through your act; and (C) Information that you received from a third party having the right to make such disclosure without restriction on disclosure or use thereof.

If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 5 is excessive in duration or scope or is unreasonable or unenforceable under the laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.

You acknowledge and agree that the Company’s remedies at law for a breach or threatened breach of any of the provisions of Section 5 would be inadequate and, in recognition of this fact, you agree that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, may be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available. Further, in the event you breach any of the foregoing covenants of this Section 5 , in addition to any other remedies available to the Company, to the maximum extent permitted by applicable law, the Company shall have the right to recoup from you, and you shall be obligated to repay to the Company, an amount equal to the actual amount of the CIC Payment paid to you pursuant to Section 3(b)(i) multiplied by the Recoverable Portion. For the purposes of this Section 5, “Recoverable Portion” means a percentage obtained by dividing (i) the number of days remaining in the Restrictive Period from and after the commencement of such breach, by (ii) 365. For the avoidance of doubt, recoupment by the Company pursuant to the immediately preceding sentence shall neither be deemed liquidated damages, nor shall it preclude the Company from seeking or obtaining a judgment against you for damages caused by your breach of the foregoing covenants of this Section 5.

 6. Prior Acknowledgment .  In connection with a Termination which entitles you to CIC Payments pursuant to Section 3(b), your agreement not to voluntarily terminate your employment with the Company or any of its affiliates, which is set forth in any Acknowledgement previously

executed by you as a condition of payment of an Annual Incentive Award, shall terminate, shall no longer be a condition of your right to retain such Annual Incentive Award, and shall be of no further force or effect.

7. Miscellaneous .

 

(a)      Successors . The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

(b)      Binding Agreement . This Agreement shall inure to the benefit of and be enforceable by you and your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. In the event of your death, all amounts otherwise payable to you hereunder shall, unless otherwise provided herein, be paid in accordance with the terms of this Agreement to your devisee, legatee or other designee or, if there is no such designee, to your estate.

 

(c)      Notice . Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when (i) personally delivered or (ii) mailed by United States certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth on the first page of this Agreement; provided that all notice to the Company shall be directed to the attention of the Board with a copy to the Chief Executive Officer of the Company, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.

 

(d)      Modifications . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by you and such officer as may be designated by the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the time or at any prior or subsequent time.

 

(e)      Governing Law . THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.

 

(f)      Tax Withholding . Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state or local law.

 

(g)      Surviving Obligations . The obligations of the Company and your obligations under this Agreement shall survive the expiration of this Agreement to the extent necessary to give effect to this Agreement.

 

(h)      Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

(i)      Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

 

(j)      Entire Agreement . This Agreement sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes the provisions of all prior agreements (including any prior Change in Control Agreement between the parties), promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereof with respect to the subject matter contained herein. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. Notwithstanding anything to the contrary in this Agreement, the procedural provisions of this Agreement shall apply to all benefits payable as a result of a Change in Control (or other change in control).

 

If this letter sets forth our agreement on the subject matter hereof, kindly sign and return to the Company the enclosed copy of this letter, which will then constitute our agreement on this subject.

 

 

 

Exhibit A

General Release

For good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, I, for myself and my successors, assigns, heirs and representatives (each, a "Releasing Party"), hereby release and forever discharge Comtech Telecommunications Corp. (the "Company"), its stockholders, officers, directors, employees, agents and attorneys, and their respective successors, assigns, heirs and representatives (each, a "Released Party"), individually and collectively, from any and all claims, demands, causes of action, liabilities or obligations, known or unknown, pending or not pending, liquidated or not liquidated, of every kind and nature whatsoever (collectively, the "Released Claims") which the Releasing Party has, has had or may have against any one or more of the Released Parties arising out of, based upon or in any way, directly or indirectly, related to the Company's business, my employment with the Company or the termination of such employment; provided , however , that this General Release shall have no effect whatsoever upon: (a) the Company's obligations, if any, to pay CIC Payments pursuant to the Change in Control Agreement between the undersigned and the Company, dated [Date] (the “CIC Agreement”) or the rights of the undersigned to enforce such obligations; (b) any and all obligations of the Released Parties to defend, indemnify, hold harmless or reimburse the undersigned under the Indemnification Agreement between the Company and the undersigned, and/or under applicable law and/or under the respective charters and by-laws of the Released Parties, and/or pursuant to insurance policies, if any, for acts or omissions in the undersigned’s capacity as a director, officer and/or employee thereof; and (c) any and all rights the undersigned may have to vested or accrued benefits or entitlements under and in accordance with any applicable plan, agreement, program, award, policy or arrangement of a Released Party.

The Released Claims include, without limitation, (a) all claims arising out of or relating to breach of contract, the Fair Labor Standards Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the National Labor Relations Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act and/or any other federal, state or local statute, law, ordinance, regulation or order as the same may be amended or supplemented from time to time, (b) all claims for back pay, lost benefits, reinstatement, liquidated damages, punitive damages, and damages on account of any alleged personal, physical or emotional injury, and (c) all claims for attorneys' fees and costs.

I agree that I am voluntarily executing this General Release. I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 and that the consideration given for the waiver and release 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 Age Discrimination in Employment Act of 1967, that: (a) my waiver and release specified herein does not apply to any rights or claims that may arise after the date I sign this General Release or my rights with respect to CIC Payments, if any, payable to me pursuant to the CIC Agreement; (b) I have the right to consult with an attorney prior to signing this General Release; (c) I have twenty-one (21) days to consider this General Release (although I may choose to sign it earlier); (d) I have seven (7) days after I sign this General Release to revoke it; and (e) this General Release will not be effective until the date on which the revocation period has expired, which will be the eighth day after I sign this General Release, assuming I have returned it to the Company by such date.

Dated:                                                   

Schedule 5(iii)

[Competitor Entities]

 Exhibit 10.4

CHANGE-IN-CONTROL AGREEMENT

Tier 2

 Dated: [Date]

 

PERSONAL AND CONFIDENTIAL

 

[Name]

[Title]

[Company Name]

 

Dear [Name]:

 

Comtech Telecommunications Corp. considers it essential to the best interests of its stockholders to foster the continued employment of its key management personnel and the key management personnel of its subsidiaries (such subsidiaries, together with Comtech Telecommunications Corp., collectively referred to as the “Company”). Our Board of Directors (the “Board”) recognizes that the possibility of a change in ownership or control of the Company may result in the departure or distraction of key personnel to the detriment of the Company and our stockholders. Therefore, the Board has determined to enter into this agreement with you (i) to encourage and reinforce your attention and dedication to your assigned duties without distraction in the face of the disruptive circumstances that can arise from a possible change in control of the Company, (ii) to enhance our ability to retain you in those circumstances, and (iii) to provide you with fair and reasonable protection from the risks of a change in ownership and control so that you will be in a position to help the Company complete a transaction that would be beneficial to stockholders.

You and the Company agree as follows:

 

1.     Term of Agreement and Protected Period.

 

(a)      Term of Agreement . The period during which this Agreement shall be in effect (the “Term”) shall be the period commencing on [Date] (the “Effective Date”) through the close of business on the second anniversary of the Effective Date; provided , however, that the Term shall be automatically renewed for successive one-year periods unless either party hereto gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then current Term; and provided further , that if a Change in Control has occurred prior to expiration of the then current Term, the Term shall continue until the date that is twenty-four (24) months after such occurrence of a Change in Control. The foregoing notwithstanding, if you remain employed with the Company at the end of the Protected Period (as defined below), the Company's obligations under Section 3(g) (and related provisions) will continue during the defined "Extended Protection Period" after the end of the Protected Period.

 

(b)     Protected Period . The “Protected Period” is the period from the time of occurrence of a Change in Control until the date that is twenty-four (24) months after the occurrence of the Change in Control. Notwithstanding the preceding sentence, the introductory text to Section 3 provides that certain events occurring before a Change in Control shall be deemed to have occurred during the Protected Period.

 2.      Change in Control .

“Change in Control” shall mean the occurrence during the Term of a Change in Control as defined in Section 14.2 of the 2000 Stock Incentive Plan, as such Plan may be amended from time to time.

 

3.      Termination and Resulting Payments .

The Agreement provides no payments or benefits in connection with Terminations which occur prior to a Change in Control, except that, if you are Terminated within 90 days prior to a Change in Control by the Company without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control, or if you Terminate with Good Reason within 90 days prior to a Change in Control (treating the entry by such a Person into such an agreement as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person, then your Termination shall be deemed to have been during the Protected Period and following a Change in Control and shall qualify for the CIC Payments specified in Section 3(b); with payments thereunder to occur on the business day following the 52 ^nd day after the Change in Control (subject to the legal effectiveness of your release), except that, if a payment is deemed to be a deferral of compensation for purposes of Section 409A of the Internal Revenue Code (the "Code") and the Change in Control did not constitute a change in the ownership of the Company, a change in effective control of the Company, or a change in the ownership of a substantial portion of the assets of the Company, as defined in Treasury Regulation § 1.409A-3(i)(5), then settlement shall occur at the date six months after your Date of Termination.

 

(a)      Termination by the Company for Cause, by You Without Good Reason, or by Reason of Death, and Failure to Perform Duties Due to Disability . If during the Protected Period you are Terminated by the Company for Cause, you voluntarily Terminate without Good Reason, Termination occurs due to your death, or Termination results from your failure to perform your duties with the Company due to a disability (for which you qualify for disability benefits), the Company will have no obligation to pay any amounts or benefits to you under this Agreement.

 

(b)      Terminations Triggering CIC Payments . The Company will pay you the payments and provide you the benefits described in this Section 3(b) upon Termination during the Protected Period and during the Term, unless such Termination is (A) by the Company for Cause, (B) by reason of death, (C) due to your failure to perform your duties with the Company due to disability (for which you qualify for disability benefits), or (D) by you without Good Reason. For purposes of this Section 3(b), a Termination shall be deemed to have occurred for Good Reason if, notwithstanding the existence of a valid basis of Termination by you for Good Reason, there has not occurred a Termination by you for Good Reason. The payments or benefits (the “CIC Payments”) provided under this Section 3(b) are as follows:

 

(i) The Company will pay you a lump sum CIC Payment, in cash, equal to the lesser of (x) the CIC Multiple times your Annual Compensation or (y) 2.5 times your Annual Compensation.

(A)    For this purpose, your “CIC Multiple” will be a fraction, the numerator of which is the number of full months that you were employed by the Company prior to Termination and the denominator of which is twelve (12).

(B)    For this purpose, your "Annual Compensation" will be the sum of (A) plus (B), where (A) is the greater of your annual base salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or your annual base salary in effect immediately prior to the Change in Control, and (B) is the amount equal to your average Annual Incentive Awards actually paid or payable or granted for performance in the three fiscal years preceding the year of your Termination; provided that, if you were not employed by the Company or a then wholly owned subsidiary of the Company for the full three-fiscal-year period, your average Annual Incentive Award will be the annual average of the sum of the amounts of your Annual Incentive Award paid or payable or granted for performance in the fiscal year or fiscal years during such period as to which you were employed during the full fiscal year plus the annualized Annual Incentive Award paid or payable or granted in any partial year in such period in which you were employed; and provided further, that for this purpose only annual incentive amounts paid or payable or granted for service to the Company or to a subsidiary that was at the time of such service wholly owned (directly or indirectly) by the Company shall be considered.

 

(ii) Other provisions of any plan or Annual Incentive Award authorization notwithstanding, with respect to your annual incentive award for the fiscal year in progress at your Date of Termination and your Annual Incentive Award for any previously completed year for which your final Annual Incentive Award has not yet been determined by the Board committee or other authorized decision maker with authority to make such determination (the "Committee"):

(A)    If and to the extent that the level of your earning of any such award is based on one or more pre-set performance goals, any such award shall be deemed earned and vested as of the Date of Termination based on the level of actual achievement of your applicable performance goal through the earlier of the end of the performance period or the Date of Termination. For this purpose, the level of actual achievement of your performance goal through the applicable date shall be determined in good faith by the Committee and without the exercise of negative discretion, and any requirement that this determination be based on audited financial results shall not apply.

(B)    If and to the extent that the level of your earning of any such award is not based on pre-set performance goals (i.e., is discretionary), any such award shall be deemed vested as of the date of Termination and shall be deemed earned at a level consistent with the level of annual incentives (as a percentage of base salary) of other executives of comparable rank whose annual incentives are based on pre-set performance goals, provided that the annual incentive shall in no event be less than a pro rata amount of your average prior years' annual incentive amount determined under Section 3(b)(i)(B) above (with prorationing based on the portion of the applicable fiscal year during which you were employed). These determinations shall be made in good faith by the Committee and without the exercise of negative discretion, as provided above.

        

(C)    No amount of such award will be payable based on performance after the Date of Termination under this Section 3(b)(ii). If you are entitled to all or any portion of the annual incentive under any other plan or authorization, the amount payable hereunder will not be paid to the extent it would duplicate such payment of the annual incentive. The provisions regarding the timing of payment under Section 3(d) take precedence over any other payment timing rule applicable to any such annual incentive.

(D)    In connection with this award, you will not be required to execute the Acknowledgement customarily required as a condition of payment of Annual Incentive Awards.

For purposes of this Section 3(b)(ii), if no Annual Incentive Award opportunity has been established for you for the fiscal year in progress at your Date of Termination, your Annual Incentive Award opportunity for that year will be deemed to be identical to the Annual Incentive Award opportunity that was established for the preceding year.

(iii) Your stock options and other equity awards shall be governed by the terms of the applicable plans and award agreements.

(iv)    Subject to your continued compliance with Section 5, for the period under applicable law you are entitled to continue medical coverage following the Date of Termination (the “Continuation Period”), the Company shall offer you continued participation in the Company’s employee medical, dental and vision plans in which you are a participant immediately prior to the Date of Termination (the “Medical Plans”), or such Medical Plans you may elect during any open enrollment period allowable by the Company or the Company’s Medical Plan insurance providers or, if permitted, as elected on the Date of Termination, at the Company’s expense, which coverage may be provided at the Company’s election under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable law. Your participation in the Medical Plans during the Continuation Period shall be subject to your timely election of coverage. If at any time during the Continuation Period such continued coverage is not permitted under the terms and conditions of the applicable Medical Plan, the Company will use commercially reasonable efforts to arrange coverage for you under a medical coverage arrangement that provides benefits substantially equivalent to, and at a cost that is no less favorable to you on an after-tax basis, the benefits you would have been entitled to receive under the Medical Plan (assuming you had elected to participate voluntarily to the maximum extent permissible). Notwithstanding the foregoing, you agree and acknowledge that any continuation coverage provided under a Medical Plan shall be provided in a manner intended to comply with applicable law, including without limitation to avoid any excise tax under Section 4980D of the Code.

(c)     Reduction in Certain Payments If Excise Tax Would Apply.

(i) Notwithstanding any other provision of this Agreement, in the event you become entitled to any amounts or benefits payable in connection with a Change in Control (whether or not such amounts are payable pursuant to this Agreement) (the “Total Change in Control Payments”), if any of such Total Change in Control Payments are subject to the tax (the “Excise

Tax”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Total Change in Control Payments shall be reduced to the Reduced Amount (as defined below) if, but only if, reducing the Total Change in Control Payments would provide to you a greater net after-tax amount of Total Change in Control Payments than would be the case if no such reduction took place.  The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of the Total Change in Control Payments without causing any Change in Control Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code.  Any reduction in Total Change in Control Payments shall be implemented in accordance with Section 3(c)(ii).

(ii) Any reduction in payments under this Section 3(c) shall apply to cash payments and/or vesting of equity awards so as to minimize the amount of compensation that is reduced (i.e., it applies to payments or vesting that to the greatest extent represent parachute payments), with the amount of compensation based on vesting to be measured (to be minimally reduced, for purposes of this provision) by the intrinsic value of the equity award at the date of such vesting.  You will be advised of the determination as to which compensation will be reduced and the reasons therefor, and will be provided a detailed computation of such amounts, and you and your advisors will be entitled to present information that may be relevant to this determination.  No reduction shall be applied to an amount that constitutes a deferral of compensation under Code Section 409A except for amounts that have become payable at the time of the reduction and as to which the reduction will not result in a non-reduction in a corresponding amount that is a deferral of compensation under Code Section 409A that is not currently payable. 

For purposes of determining whether any of the Total Change in Control Payments will be subject to the Excise Tax and the amount of such Excise Tax:

 

For purposes of determining reductions in compensation under this Section 3(c), if any, you will be deemed (A) to pay federal income taxes at the applicable rates of federal income taxation for the calendar year in which the compensation would be payable; and (B) to pay any applicable state and local income taxes at the applicable rates of taxation for the calendar year in which the compensation would be payable, taking into account any effect on federal income taxes from payment of state and local income taxes.  Compensation will be adjusted, if necessary, to provide

for accurate payments or to correct any amounts previously estimated in determining the amount of reductions in compensation under this Section 3(c). However, no adjustments will be made later than the applicable deadline under Code Section 409A if such adjustments would result in a tax penalty under Section 409A.

(iii) The Company shall have the right to control all proceedings with the Internal Revenue Service (or relating thereto) that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option and expense, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which compensation may be reduced hereunder, and you will be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority.  You agree to cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax.

(d)      Time of Payment . The Company’s obligation to make the payments provided for in Section 3(b)(i) and (ii) shall be subject to your execution of a release, in the form attached as Exhibit A, which you have not revoked, such actions to be completed by the end of any applicable revocation period. If and only if such release has become legally effective, on the business day immediately following the 52 ^nd day after your Date of Termination, the Company shall pay the amount specified in Section 3(b)(i) and (ii) in a lump sum. For purposes of compliance with Section 409A of the Internal Revenue Code, the payments under Section 3(b)(i) and (ii) shall each be deemed to be separate payments, and it is intended that the payment under Section 3(b)(i) and (ii) (and any related payment under Section 3(c)) in each case shall be deemed first to be a short-term deferral under Treasury Regulation § 1.409A-1(b)(4), and the payment under Section 3(b)(i) then shall be deemed to be separation pay excluded from being a deferral of compensation to the extent provided under Treasury Regulation § 1.409A-1(b)(9)(iii). If, however, (i) for any reason all or any portion of the payment under Section 3(b)(i) or the payment under Section 3(b)(ii), is deemed to be a non-excluded deferral of compensation under Treasury Regulation § 1.409A-1(b) payable based upon your Termination, and (ii) any of the Company’s stock is publicly traded on an established securities market or otherwise, and (iii) at the Date of Termination you are a “key employee” (as defined in Code Section 416(i) without regard to paragraph (5) thereof), then the affected portion of such payment shall be made on the first business day that is on or after the date that is six months after the date of your separation from service. Likewise, if any other payment or benefit under this Agreement would be subject to a tax penalty under Code Section 409A, such payment or benefit will be payable to you only at the date specified in the preceding sentence if such delay would avoid such tax penalty to you. You shall not be entitled to exercise any influence on the time of any payment payable hereunder, including in any case in which the permitted payment period would include portions of two different tax years.

 

(e)      Notice . During the Protected Period, any purported termination of your employment by the Company or by you shall be communicated by written Notice of Termination to the other party hereto.

 

(f)      Certain Definitions . Except as otherwise indicated in this Agreement, all definitions in this Section 3(f) shall be applicable during the Protected Period only.

 

share awards, restricted stock, stock options or any other equity based award) paid or payable or granted during the applicable fiscal year or any award to the extent specified by the Board (or a committee thereof) in the relevant award agreement or any other equity based awards in each case paid or payable or granted in lieu of annual non-equity incentive compensation for that fiscal year; provided further that, (A) the grant date fair value of any equity based award granted as annual incentive compensation shall be included in the computation of the annual incentive amounts paid or granted in any applicable fiscal year based upon the grant date fair value of such award for accounting purposes and (B) any dividend equivalents paid or payable with respect to such an equity based award shall not be considered annual incentive compensation.

 

 

(A)     The assignment to you of any duties inconsistent in any material adverse respect with your position, authority or responsibilities immediately prior to the occurrence of the Change in Control or any other material adverse change in such position, including authority or responsibilities;

 

(B)     A material reduction by the Company in either (i) your annual base salary in effect immediately prior to the Change in Control and as such base salary thereafter may have been increased or (ii) your annual non-equity incentive (as specified below). For this purpose, a reduction of $10,000 in amount or value, on an annualized basis, of your base salary will be deemed "material" (other changes may be material in the particular circumstances). A

material reduction in your annual non-equity incentive will have occurred if the amount actually paid or payable to you for any year, all or part of which is in the Protected Period (including the year in which the Change in Control occurs), is reduced to a level less than 80% of your annual non-equity incentive actually paid for performance in the latest full fiscal year before the Change in Control, including the grant date fair value of any equity-based awards granted as a payment of your annual non-equity incentive; or

 

(C)     The relocation of the principal place of your employment to a location more than fifty (50) miles from the location of such place of employment on the Effective Date; except for required travel on the Company’s business to an extent substantially consistent with your business travel obligations prior to the Change in Control.

 

 

(g)     Additional Payment Following the Protected Period . If you remain employed by the Company (which includes any affiliate of the Company) after the Protected Period, in the event that during the "Extended Protection Period" (as defined below) following the Protected Period your employment is Terminated by the Company not for Cause or Terminated by you for Modified Good Reason (as defined in this Section 3(g)), you will be entitled to the payments and benefits under Section 3(b) except that the additional payments under Section 3(b)(i) will be equal to 1.5 times Annual Compensation. For purposes of this Section 3(g), the "Extended Protection Period" means the period from the end of the Protected Period until the close of business on the first anniversary of the end of the Protected Period, provided that the Extended Protection Period will be automatically renewed for successive one-year periods unless either party hereto gives written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the then current Extended Protection Period. For purposes of this Section 3(g), "Modified Good Reason" shall mean the occurrence, without your written consent, of either (A) the assignment to you of any duties inconsistent in any material adverse respect with your position, authority or responsibilities 60 days before the end of the Protected Period or any other material adverse change in such position, including authority or responsibilities; (B) the event specified in Section 3(f)(iv)(B); or (C) the event specified in Section 3(f)(iv)(C); provided that, in each case, you have given Notice of Termination to the Company within 90 days after the initial existence of the condition giving rise to your asserted Modified Good Reason, and the Company has failed to fully correct the Modified Good Reason by your Date of Termination (which must be at least 30 days after the Notice is given) specified in the Notice of Termination (such correction by the Company having the effect of canceling such Notice and the resulting Termination), and your Termination occurs within one year after the initial existence of

circumstances constituting Modified Good Reason. Other provisions of this Agreement applicable to Section 3(b) (for example, Section 3(d) and Section 6) shall apply to the payments and benefits under this Section 3(g) as well. If you remain employed as specified in this Section 3(g), the obligations of the Company under this Agreement shall continue for the applicable Extended Protection Period after the end of the Protected Period, without regard to provisions specifying the end of the Term.

4. Mitigation .

You will not be required to mitigate the amount of payments provided for under this Agreement by seeking other employment or otherwise, nor shall the amount of payments provided for under this Agreement be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to the Company, or otherwise.

 

5.      Covenants for Protection of Company’s Business . In consideration for the payments and benefits provided by the Company under this Agreement, by your execution of this agreement you agree as follows:

you received from a third party having the right to make such disclosure without restriction on disclosure or use thereof.

If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 5 is excessive in duration or scope or is unreasonable or unenforceable under the laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.

You acknowledge and agree that the Company’s remedies at law for a breach or threatened breach of any of the provisions of Section 5 would be inadequate and, in recognition of this fact, you agree that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, may be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available. Further, in the event you breach any of the foregoing covenants of this Section 5 , in addition to any other remedies available to the Company, to the maximum extent permitted by applicable law, the Company shall have the right to recoup from you, and you shall be obligated to repay to the Company, an amount equal to the actual amount of the CIC Payment paid to you pursuant to Section 3(b)(i) multiplied by the Recoverable Portion. For the purposes of this Section 5, “Recoverable Portion” means a percentage obtained by dividing (i) the number of days remaining in the Restrictive Period from and after the commencement of such breach, by (ii) 365. For the avoidance of doubt, recoupment by the Company pursuant to the immediately preceding sentence shall neither be deemed liquidated damages, nor shall it preclude the Company from seeking or obtaining a judgment against you for damages caused by your breach of the foregoing covenants of this Section 5.

 6. Prior Acknowledgment .  In connection with a Termination which entitles you to CIC Payments pursuant to Section 3(b), your agreement not to voluntarily terminate your employment with the Company or any of its affiliates, which is set forth in any Acknowledgement previously executed by you as a condition of payment of an Annual Incentive Award, shall terminate, shall no longer be a condition of your right to retain such Annual Incentive Award, and shall be of no further force or effect.

7. Miscellaneous .

 

(a)      Successors . The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

(b)      Binding Agreement . This Agreement shall inure to the benefit of and be enforceable by you and your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. In the event of your death, all amounts otherwise payable to you hereunder shall, unless otherwise provided herein, be paid in accordance with the terms of this Agreement to your devisee, legatee or other designee or, if there is no such designee, to your estate.

 

(c)      Notice . Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when (i) personally delivered or (ii) mailed by United States certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth on the first page of this Agreement; provided that all notice to the Company shall be directed to the attention of the Board with a copy to the Chief Executive Officer of the Company, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.

 

(d)      Modifications . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by you and such officer as may be designated by the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the time or at any prior or subsequent time.

 

(e)      Governing Law . THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.

 

(f)      Tax Withholding . Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state or local law.

 

(g)      Surviving Obligations . The obligations of the Company and your obligations under this Agreement shall survive the expiration of this Agreement to the extent necessary to give effect to this Agreement.

 

(h)      Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

(i)      Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

 

(j)      Entire Agreement . This Agreement sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes the provisions of all prior agreements (including any prior Change in Control Agreement between the parties), promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereof with respect to the subject matter contained herein. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. Notwithstanding anything to the contrary in this Agreement, the procedural provisions of this Agreement shall apply to all benefits payable as a result of a Change in Control (or other change in control).

 

If this letter sets forth our agreement on the subject matter hereof, kindly sign and return to the Company the enclosed copy of this letter, which will then constitute our agreement on this subject.

 

 

 

Exhibit A

General Release

For good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, I, for myself and my successors, assigns, heirs and representatives (each, a "Releasing Party"), hereby release and forever discharge Comtech Telecommunications Corp. (the "Company"), its stockholders, officers, directors, employees, agents and attorneys, and their respective successors, assigns, heirs and representatives (each, a "Released Party"), individually and collectively, from any and all claims, demands, causes of action, liabilities or obligations, known or unknown, pending or not pending, liquidated or not liquidated, of every kind and nature whatsoever (collectively, the "Released Claims") which the Releasing Party has, has had or may have against any one or more of the Released Parties arising out of, based upon or in any way, directly or indirectly, related to the Company's business, my employment with the Company or the termination of such employment; provided , however , that this General Release shall have no effect whatsoever upon: (a) the Company's obligations, if any, to pay CIC Payments pursuant to the Change in Control Agreement between the undersigned and the Company, dated [Date] (the “CIC Agreement”) or the rights of the undersigned to enforce such obligations; (b) any and all obligations of the Released Parties to defend, indemnify, hold harmless or reimburse the undersigned under the Indemnification Agreement between the Company and the undersigned, and/or under applicable law and/or under the respective charters and by-laws of the Released Parties, and/or pursuant to insurance policies, if any, for acts or omissions in the undersigned’s capacity as a director, officer and/or employee thereof; and (c) any and all rights the undersigned may have to vested or accrued benefits or entitlements under and in accordance with any applicable plan, agreement, program, award, policy or arrangement of a Released Party.

The Released Claims include, without limitation, (a) all claims arising out of or relating to breach of contract, the Fair Labor Standards Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the National Labor Relations Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act and/or any other federal, state or local statute, law, ordinance, regulation or order as the same may be amended or supplemented from time to time, (b) all claims for back pay, lost benefits, reinstatement, liquidated damages, punitive damages, and damages on account of any alleged personal, physical or emotional injury, and (c) all claims for attorneys' fees and costs.

I agree that I am voluntarily executing this General Release. I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 and that the consideration given for the waiver and release 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 Age Discrimination in Employment Act of 1967, that: (a) my waiver and release specified herein does not apply to any rights or claims that may arise after the date I sign this General Release or my rights with respect to CIC Payments, if any, payable to me pursuant to the CIC Agreement; (b) I have the right to consult with an attorney prior to signing this General Release; (c) I have twenty-one (21) days to consider this General Release (although I may choose to sign it earlier); (d) I have seven (7) days after I sign this General Release to revoke it; and (e) this General Release will not be effective until the date on which the revocation period has expired, which will be the eighth day after I sign this General Release, assuming I have returned it to the Company by such date.

Dated:                                                   

Schedule 5(iii)

[Competitor Entities]

  Exhibit 10.5

 

CHANGE-IN-CONTROL AGREEMENT

Tier 2

 Dated: [Date]

 

PERSONAL AND CONFIDENTIAL

 

[Name]

[Title]

[Company Name]

 

Dear [Name]:

 

Comtech Telecommunications Corp. considers it essential to the best interests of its stockholders to foster the continued employment of its key management personnel and the key management personnel of its subsidiaries (such subsidiaries, together with Comtech Telecommunications Corp., collectively referred to as the “Company”). Our Board of Directors (the “Board”) recognizes that the possibility of a change in ownership or control of the Company may result in the departure or distraction of key personnel to the detriment of the Company and our stockholders. Therefore, the Board has determined to enter into this agreement with you (i) to encourage and reinforce your attention and dedication to your assigned duties without distraction in the face of the disruptive circumstances that can arise from a possible change in control of the Company, (ii) to enhance our ability to retain you in those circumstances, and (iii) to provide you with fair and reasonable protection from the risks of a change in ownership and control so that you will be in a position to help the Company complete a transaction that would be beneficial to stockholders.

You and the Company agree as follows:

 

1.     Term of Agreement and Protected Period.

 

(a)      Term of Agreement . The period during which this Agreement shall be in effect (the “Term”) shall be the period commencing on [Date] (the “Effective Date”) through the close of business on the second anniversary of the Effective Date; provided , however, that the Term shall be automatically renewed for successive one-year periods unless either party hereto gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then current Term; and provided further , that if a Change in Control has occurred prior to expiration of the then current Term, the Term shall continue until the date that is twenty-four (24) months after such occurrence of a Change in Control. The foregoing notwithstanding, if you remain employed with the Company at the end of the Protected Period (as defined below), the Company's obligations under Section 3(g) (and related provisions) will continue during the defined "Extended Protection Period" after the end of the Protected Period.

 

(b)     Protected Period . The “Protected Period” is the period from the time of occurrence of a Change in Control until the date that is twenty-four (24) months after the occurrence of the Change in Control. Notwithstanding the preceding sentence, the introductory text to Section 3 provides that certain events occurring before a Change in Control shall be deemed to have occurred during the Protected Period.

 

 2.      Change in Control .

“Change in Control” shall mean the occurrence during the Term of a Change in Control as defined in Section 14.2 of the 2000 Stock Incentive Plan, as such Plan may be amended from time to time.

 

3.      Termination and Resulting Payments .

The Agreement provides no payments or benefits in connection with Terminations which occur prior to a Change in Control, except that, if you are Terminated within 90 days prior to a Change in Control by the Company without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control, or if you Terminate with Good Reason within 90 days prior to a Change in Control (treating the entry by such a Person into such an agreement as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person, then your Termination shall be deemed to have been during the Protected Period and following a Change in Control and shall qualify for the CIC Payments specified in Section 3(b); with payments thereunder to occur on the business day following the 52 ^nd day after the Change in Control (subject to the legal effectiveness of your release), except that, if a payment is deemed to be a deferral of compensation for purposes of Section 409A of the Internal Revenue Code (the "Code") and the Change in Control did not constitute a change in the ownership of the Company, a change in effective control of the Company, or a change in the ownership of a substantial portion of the assets of the Company, as defined in Treasury Regulation § 1.409A-3(i)(5), then settlement shall occur at the date six months after your Date of Termination.

 

(a)      Termination by the Company for Cause, by You Without Good Reason, or by Reason of Death, and Failure to Perform Duties Due to Disability . If during the Protected Period you are Terminated by the Company for Cause, you voluntarily Terminate without Good Reason, Termination occurs due to your death, or Termination results from your failure to perform your duties with the Company due to a disability (for which you qualify for disability benefits), the Company will have no obligation to pay any amounts or benefits to you under this Agreement.

 

(b)      Terminations Triggering CIC Payments . The Company will pay you the payments and provide you the benefits described in this Section 3(b) upon Termination during the Protected Period and during the Term, unless such Termination is (A) by the Company for Cause, (B) by reason of death, (C) due to your failure to perform your duties with the Company due to disability (for which you qualify for disability benefits), or (D) by you without Good Reason. For purposes of this Section 3(b), a Termination shall be deemed to have occurred for Good Reason if, notwithstanding the existence of a valid basis of Termination by you for Good Reason, there has not occurred a Termination by you for Good Reason. The payments or benefits (the “CIC Payments”) provided under this Section 3(b) are as follows:

 

(i) The Company will pay you a lump sum CIC Payment, in cash, equal to the lesser of (x) the CIC Multiple times your Annual Compensation or (y) 2.5 times your Annual Compensation.

(A)    For this purpose, your “CIC Multiple” will be a fraction, the numerator of which is the number of full months that you were employed by the Company prior to Termination and the denominator of which is twelve (12).

(B)    For this purpose, your "Annual Compensation" will be the sum of (A) plus (B), where (A) is the greater of your annual base salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or your annual base salary in effect immediately prior to the Change in Control, and (B) is the amount equal to your average Annual Incentive Awards actually paid or payable or granted for performance in the three fiscal years preceding the year of your Termination; provided that, if you were not employed by the Company or a then wholly owned subsidiary of the Company for the full three-fiscal-year period, your average Annual Incentive Award will be the annual average of the sum of the amounts of your Annual Incentive Award paid or payable or granted for performance in the fiscal year or fiscal years during such period as to which you were employed during the full fiscal year plus the annualized Annual Incentive Award paid or payable or granted in any partial year in such period in which you were employed; and provided further, that for this purpose only annual incentive amounts paid or payable or granted for service to the Company or to a subsidiary that was at the time of such service wholly owned (directly or indirectly) by the Company shall be considered.

 

(ii) Other provisions of any plan or Annual Incentive Award authorization notwithstanding, with respect to your annual incentive award for the fiscal year in progress at your Date of Termination and your Annual Incentive Award for any previously completed year for which your final Annual Incentive Award has not yet been determined by the Board committee or other authorized decision maker with authority to make such determination (the "Committee"):

(A)    If and to the extent that the level of your earning of any such award is based on one or more pre-set performance goals, any such award shall be deemed earned and vested as of the Date of Termination based on the level of actual achievement of your applicable performance goal through the earlier of the end of the performance period or the Date of Termination. For this purpose, the level of actual achievement of your performance goal through the applicable date shall be determined in good faith by the Committee and without the exercise of negative discretion, and any requirement that this determination be based on audited financial results shall not apply.

(B)    If and to the extent that the level of your earning of any such award is not based on pre-set performance goals (i.e., is discretionary), any such award shall be deemed vested as of the date of Termination and shall be deemed earned at a level consistent with the level of annual incentives (as a percentage of base salary) of other executives of comparable rank whose annual incentives are based on pre-set performance goals, provided that the annual incentive shall in no event be less than a pro rata amount of your average prior years' annual incentive amount determined under Section 3(b)(i)(B) above (with prorationing based on the portion of the applicable fiscal year during which you were employed). These determinations shall be made in good faith by the Committee and without the exercise of negative discretion, as provided above.

(C)    No amount of such award will be payable based on performance after the Date of Termination under this Section 3(b)(ii). If you are entitled to all or any portion of the annual incentive under any other plan or authorization, the amount payable hereunder will not be paid to the extent it would duplicate such payment of the annual incentive. The provisions regarding the timing of payment under Section 3(d) take precedence over any other payment timing rule applicable to any such annual incentive.

(D)    In connection with this award, you will not be required to execute the Acknowledgement customarily required as a condition of payment of Annual Incentive Awards.

For purposes of this Section 3(b)(ii), if no Annual Incentive Award opportunity has been established for you for the fiscal year in progress at your Date of Termination, your Annual Incentive Award opportunity for that year will be deemed to be identical to the Annual Incentive Award opportunity that was established for the preceding year.

(iii) Your stock options and other equity awards shall be governed by the terms of the applicable plans and award agreements.

(iv)    Subject to your continued compliance with Section 5, for the period under applicable law you are entitled to continue medical coverage following the Date of Termination (the “Continuation Period”), the Company shall offer you continued participation in the Company’s employee medical, dental and vision plans in which you are a participant immediately prior to the Date of Termination (the “Medical Plans”), or such Medical Plans you may elect during any open enrollment period allowable by the Company or the Company’s Medical Plan insurance providers or, if permitted, as elected on the Date of Termination, at the Company’s expense, which coverage may be provided at the Company’s election under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable law. Your participation in the Medical Plans during the Continuation Period shall be subject to your timely election of coverage. If at any time during the Continuation Period such continued coverage is not permitted under the terms and conditions of the applicable Medical Plan, the Company will use commercially reasonable efforts to arrange coverage for you under a medical coverage arrangement that provides benefits substantially equivalent to, and at a cost that is no less favorable to you on an after-tax basis, the benefits you would have been entitled to receive under the Medical Plan (assuming you had elected to participate voluntarily to the maximum extent permissible). Notwithstanding the foregoing, you agree and acknowledge that any continuation coverage provided under a Medical Plan shall be provided in a manner intended to comply with applicable law, including without limitation to avoid any excise tax under Section 4980D of the Code.

(c)     Reduction in Certain Payments If Excise Tax Would Apply.

(i) Notwithstanding any other provision of this Agreement, in the event you become entitled to any amounts or benefits payable in connection with a Change in Control (whether or not such amounts are payable pursuant to this Agreement) (the “Total Change in Control Payments”), if any of such Total Change in Control Payments are subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may

hereafter be imposed), the Total Change in Control Payments shall be reduced to the Reduced Amount (as defined below) if, but only if, reducing the Total Change in Control Payments would provide to you a greater net after-tax amount of Total Change in Control Payments than would be the case if no such reduction took place.  The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of the Total Change in Control Payments without causing any Change in Control Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code.  Any reduction in Total Change in Control Payments shall be implemented in accordance with Section 3(c)(ii).

(ii) Any reduction in payments under this Section 3(c) shall apply to cash payments and/or vesting of equity awards so as to minimize the amount of compensation that is reduced (i.e., it applies to payments or vesting that to the greatest extent represent parachute payments), with the amount of compensation based on vesting to be measured (to be minimally reduced, for purposes of this provision) by the intrinsic value of the equity award at the date of such vesting.  You will be advised of the determination as to which compensation will be reduced and the reasons therefor, and will be provided a detailed computation of such amounts, and you and your advisors will be entitled to present information that may be relevant to this determination.  No reduction shall be applied to an amount that constitutes a deferral of compensation under Code Section 409A except for amounts that have become payable at the time of the reduction and as to which the reduction will not result in a non-reduction in a corresponding amount that is a deferral of compensation under Code Section 409A that is not currently payable. 

For purposes of determining whether any of the Total Change in Control Payments will be subject to the Excise Tax and the amount of such Excise Tax:

 

For purposes of determining reductions in compensation under this Section 3(c), if any, you will be deemed (A) to pay federal income taxes at the applicable rates of federal income taxation for the calendar year in which the compensation would be payable; and (B) to pay any applicable state and local income taxes at the applicable rates of taxation for the calendar year in which the compensation would be payable, taking into account any effect on federal income taxes from payment of state and local income taxes.  Compensation will be adjusted, if necessary, to provide for accurate payments or to correct any amounts previously estimated in determining the amount

of reductions in compensation under this Section 3(c). However, no adjustments will be made later than the applicable deadline under Code Section 409A if such adjustments would result in a tax penalty under Section 409A.

(iii) The Company shall have the right to control all proceedings with the Internal Revenue Service (or relating thereto) that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option and expense, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which compensation may be reduced hereunder, and you will be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority.  You agree to cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax.

(d)      Time of Payment . The Company’s obligation to make the payments provided for in Section 3(b)(i) and (ii) shall be subject to your execution of a release, in the form attached as Exhibit A, which you have not revoked, such actions to be completed by the end of any applicable revocation period. If and only if such release has become legally effective, on the business day immediately following the 52 ^nd day after your Date of Termination, the Company shall pay the amount specified in Section 3(b)(i) and (ii) in a lump sum. For purposes of compliance with Section 409A of the Internal Revenue Code, the payments under Section 3(b)(i) and (ii) shall each be deemed to be separate payments, and it is intended that the payment under Section 3(b)(i) and (ii) (and any related payment under Section 3(c)) in each case shall be deemed first to be a short-term deferral under Treasury Regulation § 1.409A-1(b)(4), and the payment under Section 3(b)(i) then shall be deemed to be separation pay excluded from being a deferral of compensation to the extent provided under Treasury Regulation § 1.409A-1(b)(9)(iii). If, however, (i) for any reason all or any portion of the payment under Section 3(b)(i) or the payment under Section 3(b)(ii), is deemed to be a non-excluded deferral of compensation under Treasury Regulation § 1.409A-1(b) payable based upon your Termination, and (ii) any of the Company’s stock is publicly traded on an established securities market or otherwise, and (iii) at the Date of Termination you are a “key employee” (as defined in Code Section 416(i) without regard to paragraph (5) thereof), then the affected portion of such payment shall be made on the first business day that is on or after the date that is six months after the date of your separation from service. Likewise, if any other payment or benefit under this Agreement would be subject to a tax penalty under Code Section 409A, such payment or benefit will be payable to you only at the date specified in the preceding sentence if such delay would avoid such tax penalty to you. You shall not be entitled to exercise any influence on the time of any payment payable hereunder, including in any case in which the permitted payment period would include portions of two different tax years.

 

(e)      Notice . During the Protected Period, any purported termination of your employment by the Company or by you shall be communicated by written Notice of Termination to the other party hereto.

 

(f)      Certain Definitions . Except as otherwise indicated in this Agreement, all definitions in this Section 3(f) shall be applicable during the Protected Period only.

 

paid or payable or granted during the applicable fiscal year or any award to the extent specified by the Board (or a committee thereof) in the relevant award agreement or any other equity based awards in each case paid or payable or granted in lieu of annual non-equity incentive compensation for that fiscal year; provided further that, (A) the grant date fair value of any equity based award granted as annual incentive compensation shall be included in the computation of the annual incentive amounts paid or granted in any applicable fiscal year based upon the grant date fair value of such award for accounting purposes and (B) any dividend equivalents paid or payable with respect to such an equity based award shall not be considered annual incentive compensation.

 

 

(A)     The assignment to you of any duties inconsistent in any material adverse respect with your position, authority or responsibilities immediately prior to the occurrence of the Change in Control or any other material adverse change in such position, including authority or responsibilities;

 

(B)     A material reduction by the Company in either (i) your annual base salary in effect immediately prior to the Change in Control and as such base salary thereafter may have been increased or (ii) your annual non-equity incentive (as specified below). For this purpose, a reduction of $10,000 in amount or value, on an annualized basis, of your base salary will be deemed "material" (other changes may be material in the particular circumstances). A material reduction in your annual non-equity incentive will have occurred if the

amount actually paid or payable to you for any year, all or part of which is in the Protected Period (including the year in which the Change in Control occurs), is reduced to a level less than 80% of your annual non-equity incentive actually paid for performance in the latest full fiscal year before the Change in Control, including the grant date fair value of any equity-based awards granted as a payment of your annual non-equity incentive; or

 

(C)     The relocation of the principal place of your employment to a location more than fifty (50) miles from the location of such place of employment on the Effective Date; except for required travel on the Company’s business to an extent substantially consistent with your business travel obligations prior to the Change in Control.

 

 

(g)     Additional Payment Following the Protected Period . If you remain employed by the Company (which includes any affiliate of the Company) after the Protected Period, in the event that during the "Extended Protection Period" (as defined below) following the Protected Period your employment is Terminated by the Company not for Cause or Terminated by you for Modified Good Reason (as defined in this Section 3(g)), you will be entitled to the payments and benefits under Section 3(b) except that the additional payments under Section 3(b)(i) will be equal to 1.5 times Annual Compensation. For purposes of this Section 3(g), the "Extended Protection Period" means the period from the end of the Protected Period until the close of business on the first anniversary of the end of the Protected Period, provided that the Extended Protection Period will be automatically renewed for successive one-year periods unless either party hereto gives written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the then current Extended Protection Period. For purposes of this Section 3(g), "Modified Good Reason" shall mean the occurrence, without your written consent, of either (A) the assignment to you of any duties inconsistent in any material adverse respect with your position, authority or responsibilities 60 days before the end of the Protected Period or any other material adverse change in such position, including authority or responsibilities; (B) the event specified in Section 3(f)(iv)(B); or (C) the event specified in Section 3(f)(iv)(C); provided that, in each case, you have given Notice of Termination to the Company within 90 days after the initial existence of the condition giving rise to your asserted Modified Good Reason, and the Company has failed to fully correct the Modified Good Reason by your Date of Termination (which must be at least 30 days after the Notice is given) specified in the Notice of Termination (such correction by the Company having the effect of canceling such Notice and the resulting Termination), and your Termination occurs within one year after the initial existence of circumstances constituting Modified Good Reason. Other provisions of this Agreement

applicable to Section 3(b) (for example, Section 3(d) and Section 6) shall apply to the payments and benefits under this Section 3(g) as well. If you remain employed as specified in this Section 3(g), the obligations of the Company under this Agreement shall continue for the applicable Extended Protection Period after the end of the Protected Period, without regard to provisions specifying the end of the Term.

4. Mitigation .

You will not be required to mitigate the amount of payments provided for under this Agreement by seeking other employment or otherwise, nor shall the amount of payments provided for under this Agreement be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to the Company, or otherwise.

 

5.      Covenants for Protection of Company’s Business . In consideration for the payments and benefits provided by the Company under this Agreement, by your execution of this agreement you agree as follows:

If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 5 is excessive in duration or scope or is unreasonable or unenforceable under the laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.

You acknowledge and agree that the Company’s remedies at law for a breach or threatened breach of any of the provisions of Section 5 would be inadequate and, in recognition of this fact, you agree that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, may be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available. Further, in the event you breach any of the foregoing covenants of this Section 5 , in addition to any other remedies available to the Company, to the maximum extent permitted by applicable law, the Company shall have the right to recoup from you, and you shall be obligated to repay to the Company, an amount equal to the actual amount of the CIC Payment paid to you pursuant to Section 3(b)(i) multiplied by the Recoverable Portion. For the purposes of this Section 5, “Recoverable Portion” means a percentage obtained by dividing (i) the number of days remaining in the Restrictive Period from and after the commencement of such breach, by (ii) 365. For the avoidance of doubt, recoupment by the Company pursuant to the immediately preceding sentence shall neither be deemed liquidated damages, nor shall it preclude the Company from seeking or obtaining a judgment against you for damages caused by your breach of the foregoing covenants of this Section 5.

 6. Prior Acknowledgment .  In connection with a Termination which entitles you to CIC Payments pursuant to Section 3(b), your agreement not to voluntarily terminate your employment with the Company or any of its affiliates, which is set forth in any Acknowledgement previously executed by you as a condition of payment of an Annual Incentive Award, shall terminate, shall no longer be a condition of your right to retain such Annual Incentive Award, and shall be of no further force or effect.

7. Miscellaneous .

 

(a)      Successors . The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

 

(b)      Binding Agreement . This Agreement shall inure to the benefit of and be enforceable by you and your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. In the event of your death, all amounts otherwise payable to you hereunder shall, unless otherwise provided herein, be paid in accordance with the terms of this Agreement to your devisee, legatee or other designee or, if there is no such designee, to your estate.

 

(c)      Notice . Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when (i) personally delivered or (ii) mailed by United States certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth on the first page of this Agreement; provided that all notice to the Company shall be directed to the attention of the Board with a copy to the Chief Executive Officer of the Company, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.

 

(d)      Modifications . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by you and such officer as may be designated by the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the time or at any prior or subsequent time.

 

(e)      Governing Law . THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.

 

(f)      Tax Withholding . Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state or local law.

 

(g)      Surviving Obligations . The obligations of the Company and your obligations under this Agreement shall survive the expiration of this Agreement to the extent necessary to give effect to this Agreement.

 

(h)      Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

(i)      Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

 

(j)      Entire Agreement . This Agreement sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes the provisions of all prior agreements (including any prior Change in Control Agreement between the parties), promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereof with respect to the subject matter contained herein. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set

forth in this Agreement. Notwithstanding anything to the contrary in this Agreement, the procedural provisions of this Agreement shall apply to all benefits payable as a result of a Change in Control (or other change in control).

 

If this letter sets forth our agreement on the subject matter hereof, kindly sign and return to the Company the enclosed copy of this letter, which will then constitute our agreement on this subject.

 

 

 

Exhibit A

General Release

For good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, I, for myself and my successors, assigns, heirs and representatives (each, a "Releasing Party"), hereby release and forever discharge Comtech Telecommunications Corp. (the "Company"), its stockholders, officers, directors, employees, agents and attorneys, and their respective successors, assigns, heirs and representatives (each, a "Released Party"), individually and collectively, from any and all claims, demands, causes of action, liabilities or obligations, known or unknown, pending or not pending, liquidated or not liquidated, of every kind and nature whatsoever (collectively, the "Released Claims") which the Releasing Party has, has had or may have against any one or more of the Released Parties arising out of, based upon or in any way, directly or indirectly, related to the Company's business, my employment with the Company or the termination of such employment; provided , however , that this General Release shall have no effect whatsoever upon: (a) the Company's obligations, if any, to pay CIC Payments pursuant to the Change in Control Agreement between the undersigned and the Company, dated [Date] (the “CIC Agreement”) or the rights of the undersigned to enforce such obligations; (b) any and all obligations of the Released Parties to defend, indemnify, hold harmless or reimburse the undersigned under the Indemnification Agreement between the Company and the undersigned, and/or under applicable law and/or under the respective charters and by-laws of the Released Parties, and/or pursuant to insurance policies, if any, for acts or omissions in the undersigned’s capacity as a director, officer and/or employee thereof; and (c) any and all rights the undersigned may have to vested or accrued benefits or entitlements under and in accordance with any applicable plan, agreement, program, award, policy or arrangement of a Released Party.

The Released Claims include, without limitation, (a) all claims arising out of or relating to breach of contract, the Fair Labor Standards Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the National Labor Relations Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act and/or any other federal, state or local statute, law, ordinance, regulation or order as the same may be amended or supplemented from time to time, (b) all claims for back pay, lost benefits, reinstatement, liquidated damages, punitive damages, and damages on account of any alleged personal, physical or emotional injury, and (c) all claims for attorneys' fees and costs.

I agree that I am voluntarily executing this General Release. I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 and that the consideration given for the waiver and release 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 Age Discrimination in Employment Act of 1967, that: (a) my waiver and release specified herein does not apply to any rights or claims that may arise after the date I sign this General Release or my rights with respect to CIC Payments, if any, payable to me pursuant to the CIC Agreement; (b) I have the right to consult with an attorney prior to signing this General Release; (c) I have twenty-one (21) days to consider this General Release (although I may choose to sign it earlier); (d) I have seven (7) days after I sign this General Release to revoke it; and (e) this General Release will not be effective until the date on which the revocation period has expired, which will be the eighth day after I sign this General Release, assuming I have returned it to the Company by such date.

Dated:                                                   

Schedule 5(iii)

[Competitor Entities]

 Exhibit 10.6

CHANGE-IN-CONTROL AGREEMENT

Tier 3

 Dated: [Date]

 

PERSONAL AND CONFIDENTIAL

 

[Name]

[Title]

[Company Name]

 

Dear [Name]:

 

Comtech Telecommunications Corp. considers it essential to the best interests of its stockholders to foster the continued employment of its key management personnel and the key management personnel of its subsidiaries (such subsidiaries, together with Comtech Telecommunications Corp., collectively referred to as the “Company”). Our Board of Directors (the “Board”) recognizes that the possibility of a change in ownership or control of the Company may result in the departure or distraction of key personnel to the detriment of the Company and our stockholders. Therefore, the Board has determined to enter into this agreement with you (i) to encourage and reinforce your attention and dedication to your assigned duties without distraction in the face of the disruptive circumstances that can arise from a possible change in control of the Company, (ii) to enhance our ability to retain you in those circumstances, and (iii) to provide you with fair and reasonable protection from the risks of a change in ownership and control so that you will be in a position to help the Company complete a transaction that would be beneficial to stockholders.

You and the Company agree as follows:

 

1.     Term of Agreement and Protected Period.

 

(a)      Term of Agreement . The period during which this Agreement shall be in effect (the “Term”) shall be the period commencing on [Date] (the “Effective Date”) through the close of business on the second anniversary of the Effective Date; provided , however, that the Term shall be automatically renewed for successive one-year periods unless either party hereto gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then current Term; and provided further , that if a Change in Control has occurred prior to expiration of the then current Term, the Term shall continue until the date that is twenty-four (24) months after such occurrence of a Change in Control. The foregoing notwithstanding, if you remain employed with the Company at the end of the Protected Period (as defined below), the Company's obligations under Section 3(g) (and related provisions) will continue during the defined "Extended Protection Period" after the end of the Protected Period.

 

(b)     Protected Period . The “Protected Period” is the period from the time of occurrence of a Change in Control until the date that is twenty-four (24) months after the occurrence of the Change in Control. Notwithstanding the preceding sentence, the introductory text to Section 3 provides that certain events occurring before a Change in Control shall be deemed to have occurred during the Protected Period.

 

2.      Change in Control .

“Change in Control” shall mean the occurrence during the Term of a Change in Control as defined in Section 14.2 of the 2000 Stock Incentive Plan, as such Plan may be amended from time to time.

 

3.      Termination and Resulting Payments .

The Agreement provides no payments or benefits in connection with Terminations which occur prior to a Change in Control, except that, if you are Terminated within 90 days prior to a Change in Control by the Company without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control, or if you Terminate with Good Reason within 90 days prior to a Change in Control (treating the entry by such a Person into such an agreement as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person, then your Termination shall be deemed to have been during the Protected Period and following a Change in Control and shall qualify for the CIC Payments specified in Section 3(b); with payments thereunder to occur on the business day following the 52 ^nd day after the Change in Control (subject to the legal effectiveness of your release), except that, if a payment is deemed to be a deferral of compensation for purposes of Section 409A of the Internal Revenue Code (the "Code") and the Change in Control did not constitute a change in the ownership of the Company, a change in effective control of the Company, or a change in the ownership of a substantial portion of the assets of the Company, as defined in Treasury Regulation § 1.409A-3(i)(5), then settlement shall occur at the date six months after your Date of Termination.

 

(a)      Termination by the Company for Cause, by You Without Good Reason, or by Reason of Death, and Failure to Perform Duties Due to Disability . If during the Protected Period you are Terminated by the Company for Cause, you voluntarily Terminate without Good Reason, Termination occurs due to your death, or Termination results from your failure to perform your duties with the Company due to a disability (for which you qualify for disability benefits), the Company will have no obligation to pay any amounts or benefits to you under this Agreement.

 

(b)      Terminations Triggering CIC Payments . The Company will pay you the payments and provide you the benefits described in this Section 3(b) upon Termination during the Protected Period and during the Term, unless such Termination is (A) by the Company for Cause, (B) by reason of death, (C) due to your failure to perform your duties with the Company due to disability (for which you qualify for disability benefits), or (D) by you without Good Reason. For purposes of this Section 3(b), a Termination shall be deemed to have occurred for Good Reason if, notwithstanding the existence of a valid basis of Termination by you for Good Reason, there has not occurred a Termination by you for Good Reason. The payments or benefits (the “CIC Payments”) provided under this Section 3(b) are as follows:

 

(i) The Company will pay you a lump sum CIC Payment, in cash, equal to the lesser of (x) the CIC Multiple times your Annual Compensation or (y) 1.5 times your Annual Compensation.

(A) For this purpose, your “CIC Multiple” will be a fraction, the numerator of which is the number of full months that you were employed by the Company prior to Termination and the denominator of which is twelve (12).

(B) For this purpose, your "Annual Compensation" will be the sum of (A) plus (B), where (A) is the greater of your annual base salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or your annual base salary in effect immediately prior to the Change in Control, and (B) is the amount equal to your average Annual Incentive Awards actually paid or payable or granted for performance in the three fiscal years preceding the year of your Termination; provided that, if you were not employed by the Company or a then wholly owned subsidiary of the Company for the full three-fiscal-year period, your average Annual Incentive Award will be the annual average of the sum of the amounts of your Annual Incentive Award paid or payable or granted for performance in the fiscal year or fiscal years during such period as to which you were employed during the full fiscal year plus the annualized Annual Incentive Award paid or payable or granted in any partial year in such period in which you were employed; and provided further, that for this purpose only annual incentive amounts paid or payable or granted for service to the Company or to a subsidiary that was at the time of such service wholly owned (directly or indirectly) by the Company shall be considered.

 

(ii) Other provisions of any plan or Annual Incentive Award authorization notwithstanding, with respect to your annual incentive award for the fiscal year in progress at your Date of Termination and your Annual Incentive Award for any previously completed year for which your final Annual Incentive Award has not yet been determined by the Board committee or other authorized decision maker with authority to make such determination (the "Committee"):

(A)    If and to the extent that the level of your earning of any such award is based on one or more pre-set performance goals, any such award shall be deemed earned and vested as of the Date of Termination based on the level of actual achievement of your applicable performance goal through the earlier of the end of the performance period or the Date of Termination. For this purpose, the level of actual achievement of your performance goal through the applicable date shall be determined in good faith by the Committee and without the exercise of negative discretion, and any requirement that this determination be based on audited financial results shall not apply.

(B)    If and to the extent that the level of your earning of any such award is not based on pre-set performance goals (i.e., is discretionary), any such award shall be deemed vested as of the date of Termination and shall be deemed earned at a level consistent with the level of annual incentives (as a percentage of base salary) of other executives of comparable rank whose annual incentives are based on pre-set performance goals, provided that the annual incentive shall in no event be less than a pro rata amount of your average prior years' annual incentive amount determined under Section 3(b)(i)(B) above (with prorationing based on the portion of the applicable fiscal year during which you were employed). These determinations shall be made in good faith by the Committee and without the exercise of negative discretion, as provided above.

(C)    No amount of such award will be payable based on performance after the Date of Termination under this Section 3(b)(ii). If you are entitled to all or any portion of the annual incentive under any other plan or authorization, the amount payable hereunder will not be paid to the extent it would duplicate such payment of the annual incentive. The provisions regarding the timing of payment under Section 3(d) take precedence over any other payment timing rule applicable to any such annual incentive.

(D)    In connection with this award, you will not be required to execute the Acknowledgement customarily required as a condition of payment of Annual Incentive Awards.

For purposes of this Section 3(b)(ii), if no Annual Incentive Award opportunity has been established for you for the fiscal year in progress at your Date of Termination, your Annual Incentive Award opportunity for that year will be deemed to be identical to the Annual Incentive Award opportunity that was established for the preceding year.

(iii) Your stock options and other equity awards shall be governed by the terms of the applicable plans and award agreements.

(iv)    Subject to your continued compliance with Section 5, for the period under applicable law you are entitled to continue medical coverage following the Date of Termination (the “Continuation Period”), the Company shall offer you continued participation in the Company’s employee medical, dental and vision plans in which you are a participant immediately prior to the Date of Termination (the “Medical Plans”), or such Medical Plans you may elect during any open enrollment period allowable by the Company or the Company’s Medical Plan insurance providers or, if permitted, as elected on the Date of Termination, at the Company’s expense, which coverage may be provided at the Company’s election under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable law. Your participation in the Medical Plans during the Continuation Period shall be subject to your timely election of coverage. If at any time during the Continuation Period such continued coverage is not permitted under the terms and conditions of the applicable Medical Plan, the Company will use commercially reasonable efforts to arrange coverage for you under a medical coverage arrangement that provides benefits substantially equivalent to, and at a cost that is no less favorable to you on an after-tax basis, the benefits you would have been entitled to receive under the Medical Plan (assuming you had elected to participate voluntarily to the maximum extent permissible). Notwithstanding the foregoing, you agree and acknowledge that any continuation coverage provided under a Medical Plan shall be provided in a manner intended to comply with applicable law, including without limitation to avoid any excise tax under Section 4980D of the Code.

(c)     Reduction in Certain Payments If Excise Tax Would Apply.

(i) Notwithstanding any other provision of this Agreement, in the event you become entitled to any amounts or benefits payable in connection with a Change in Control (whether or not such amounts are payable pursuant to this Agreement) (the “Total Change in Control Payments”), if any of such Total Change in Control Payments are subject to the tax (the “Excise

Tax”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Total Change in Control Payments shall be reduced to the Reduced Amount (as defined below) if, but only if, reducing the Total Change in Control Payments would provide to you a greater net after-tax amount of Total Change in Control Payments than would be the case if no such reduction took place.  The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of the Total Change in Control Payments without causing any Change in Control Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code.  Any reduction in Total Change in Control Payments shall be implemented in accordance with Section 3(c)(ii).

(ii) Any reduction in payments under this Section 3(c) shall apply to cash payments and/or vesting of equity awards so as to minimize the amount of compensation that is reduced (i.e., it applies to payments or vesting that to the greatest extent represent parachute payments), with the amount of compensation based on vesting to be measured (to be minimally reduced, for purposes of this provision) by the intrinsic value of the equity award at the date of such vesting.  You will be advised of the determination as to which compensation will be reduced and the reasons therefor, and will be provided a detailed computation of such amounts, and you and your advisors will be entitled to present information that may be relevant to this determination.  No reduction shall be applied to an amount that constitutes a deferral of compensation under Code Section 409A except for amounts that have become payable at the time of the reduction and as to which the reduction will not result in a non-reduction in a corresponding amount that is a deferral of compensation under Code Section 409A that is not currently payable. 

For purposes of determining whether any of the Total Change in Control Payments will be subject to the Excise Tax and the amount of such Excise Tax:

 

For purposes of determining reductions in compensation under this Section 3(c), if any, you will be deemed (A) to pay federal income taxes at the applicable rates of federal income taxation for the calendar year in which the compensation would be payable; and (B) to pay any applicable state and local income taxes at the applicable rates of taxation for the calendar year in which the compensation would be payable, taking into account any effect on federal income taxes from payment of state and local income taxes.  Compensation will be adjusted, if necessary, to provide

for accurate payments or to correct any amounts previously estimated in determining the amount of reductions in compensation under this Section 3(c). However, no adjustments will be made later than the applicable deadline under Code Section 409A if such adjustments would result in a tax penalty under Section 409A.

(iii) The Company shall have the right to control all proceedings with the Internal Revenue Service (or relating thereto) that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option and expense, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which compensation may be reduced hereunder, and you will be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority.  You agree to cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax.

(d)      Time of Payment . The Company’s obligation to make the payments provided for in Section 3(b)(i) and (ii) shall be subject to your execution of a release, in the form attached as Exhibit A, which you have not revoked, such actions to be completed by the end of any applicable revocation period. If and only if such release has become legally effective, on the business day immediately following the 52 ^nd day after your Date of Termination, the Company shall pay the amount specified in Section 3(b)(i) and (ii) in a lump sum. For purposes of compliance with Section 409A of the Internal Revenue Code, the payments under Section 3(b)(i) and (ii) shall each be deemed to be separate payments, and it is intended that the payment under Section 3(b)(i) and (ii) (and any related payment under Section 3(c)) in each case shall be deemed first to be a short-term deferral under Treasury Regulation § 1.409A-1(b)(4), and the payment under Section 3(b)(i) then shall be deemed to be separation pay excluded from being a deferral of compensation to the extent provided under Treasury Regulation § 1.409A-1(b)(9)(iii). If, however, (i) for any reason all or any portion of the payment under Section 3(b)(i) or the payment under Section 3(b)(ii), is deemed to be a non-excluded deferral of compensation under Treasury Regulation § 1.409A-1(b) payable based upon your Termination, and (ii) any of the Company’s stock is publicly traded on an established securities market or otherwise, and (iii) at the Date of Termination you are a “key employee” (as defined in Code Section 416(i) without regard to paragraph (5) thereof), then the affected portion of such payment shall be made on the first business day that is on or after the date that is six months after the date of your separation from service. Likewise, if any other payment or benefit under this Agreement would be subject to a tax penalty under Code Section 409A, such payment or benefit will be payable to you only at the date specified in the preceding sentence if such delay would avoid such tax penalty to you. You shall not be entitled to exercise any influence on the time of any payment payable hereunder, including in any case in which the permitted payment period would include portions of two different tax years.

 

(e)      Notice . During the Protected Period, any purported termination of your employment by the Company or by you shall be communicated by written Notice of Termination to the other party hereto.

 

(f)      Certain Definitions . Except as otherwise indicated in this Agreement, all definitions in this Section 3(f) shall be applicable during the Protected Period only.

 

share awards, restricted stock, stock options or any other equity based award) paid or payable or granted during the applicable fiscal year or any award to the extent specified by the Board (or a committee thereof) in the relevant award agreement or any other equity based awards in each case paid or payable or granted in lieu of annual non-equity incentive compensation for that fiscal year; provided further that, (A) the grant date fair value of any equity based award granted as annual incentive compensation shall be included in the computation of the annual incentive amounts paid or granted in any applicable fiscal year based upon the grant date fair value of such award for accounting purposes and (B) any dividend equivalents paid or payable with respect to such an equity based award shall not be considered annual incentive compensation.

 

 

(A)     The assignment to you of any duties inconsistent in any material adverse respect with your position, authority or responsibilities immediately prior to the occurrence of the Change in Control or any other material adverse change in such position, including authority or responsibilities;

 

(B)     A material reduction by the Company in either (i) your annual base salary in effect immediately prior to the Change in Control and as such base salary thereafter may have been increased, (ii) your annual incentive (as specified below), or (iii) your annual equity awards (as specified below). For this purpose, a reduction of $10,000 in amount or value, on an annualized basis, of your base salary or annual equity awards value, or of these two elements in

the aggregate, will be deemed "material" (other changes may be material in the particular circumstances). A material reduction in your annual incentive will have occurred if the amount actually paid or payable to you for any year, all or part of which is in the Protected Period (including the year in which the Change in Control occurs), is reduced to a level less than 80% of your annual incentive actually paid for performance in the latest full fiscal year before the Change in Control, including the grant date fair value of any equity-based awards granted as a payment of your annual incentive. A material reduction in your annual equity awards will be based on the extent to which the aggregate grant date fair value of equity awards in a given fiscal year during the Protected Period is reduced from the grant date fair values of the annual equity awards granted to you from the Company before the Change in Control (these grants may have occurred in the same fiscal year as the Change in Control). Annual equity awards shall be deemed to have a value determined in a manner consistent with the Company's (or then parent company's) internal valuation method for such awards used at the time of grant. It shall not constitute a material reduction in the annual equity awards for the Company to change the form of such awards to either equity of the surviving parent corporation or cash, provided the value thereof is not materially reduced; or

 

(C)     The relocation of the principal place of your employment to a location more than fifty (50) miles from the location of such place of employment on the Effective Date; except for required travel on the Company’s business to an extent substantially consistent with your business travel obligations prior to the Change in Control.

 

 

(g)     Additional Payment Following the Protected Period . If you remain employed by the Company (which includes any affiliate of the Company) after the Protected Period, in the event that during the "Extended Protection Period" (as defined below) following the Protected Period your employment is Terminated by the Company not for Cause or Terminated by you for Modified Good Reason (as defined in this Section 3(g)), you will be entitled to the payments and benefits under Section 3(b) except that the additional payments under Section 3(b)(i) will be equal to 1.0 times Annual Compensation. For purposes of this Section 3(g), the "Extended Protection Period" means the period from the end of the Protected Period until the close of business on the first anniversary of the end of the Protected Period, provided that the Extended Protection Period will be automatically renewed for successive one-year periods unless either party hereto gives written notice of non-renewal to the other party at least ninety (90) days prior

to the expiration of the then current Extended Protection Period. For purposes of this Section 3(g), "Modified Good Reason" shall mean the occurrence, without your written consent, of either (A) the assignment to you of any duties inconsistent in any material adverse respect with your position, authority or responsibilities 60 days before the end of the Protected Period or any other material adverse change in such position, including authority or responsibilities; (B) the event specified in Section 3(f)(iv)(B); or (C) the event specified in Section 3(f)(iv)(C); provided that, in each case, you have given Notice of Termination to the Company within 90 days after the initial existence of the condition giving rise to your asserted Modified Good Reason, and the Company has failed to fully correct the Modified Good Reason by your Date of Termination (which must be at least 30 days after the Notice is given) specified in the Notice of Termination (such correction by the Company having the effect of canceling such Notice and the resulting Termination), and your Termination occurs within one year after the initial existence of circumstances constituting Modified Good Reason. Other provisions of this Agreement applicable to Section 3(b) (for example, Section 3(d) and Section 6) shall apply to the payments and benefits under this Section 3(g) as well. If you remain employed as specified in this Section 3(g), the obligations of the Company under this Agreement shall continue for the applicable Extended Protection Period after the end of the Protected Period, without regard to provisions specifying the end of the Term.

4. Mitigation .

You will not be required to mitigate the amount of payments provided for under this Agreement by seeking other employment or otherwise, nor shall the amount of payments provided for under this Agreement be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to the Company, or otherwise.

 

5.      Covenants for Protection of Company’s Business . In consideration for the payments and benefits provided by the Company under this Agreement, by your execution of this agreement you agree as follows:

markets, business opportunities, and financial, technical and other data (collectively, the "Confidential Information"). After termination of your employment with the Company for any reason and upon the written request of the Company, you shall promptly return to the Company all originals and/or copies of written or recorded material (regardless of the medium) containing or reflecting any Confidential Information and shall promptly confirm in writing to the Company that such action has been taken. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (A) Information that is already in the public domain at the time of its disclosure to you; (B) Information that, after its disclosure to you, becomes part of the public domain by publication or otherwise other than through your act; and (C) Information that you received from a third party having the right to make such disclosure without restriction on disclosure or use thereof.

If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 5 is excessive in duration or scope or is unreasonable or unenforceable under the laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.

You acknowledge and agree that the Company’s remedies at law for a breach or threatened breach of any of the provisions of Section 5 would be inadequate and, in recognition of this fact, you agree that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, may be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available. Further, in the event you breach any of the foregoing covenants of this Section 5 , in addition to any other remedies available to the Company, to the maximum extent permitted by applicable law, the Company shall have the right to recoup from you, and you shall be obligated to repay to the Company, an amount equal to the actual amount of the CIC Payment paid to you pursuant to Section 3(b)(i) multiplied by the Recoverable Portion. For the purposes of this Section 5, “Recoverable Portion” means a percentage obtained by dividing (i) the number of days remaining in the Restrictive Period from and after the commencement of such breach, by (ii) 365. For the avoidance of doubt, recoupment by the Company pursuant to the immediately preceding sentence shall neither be deemed liquidated damages, nor shall it preclude the Company from seeking or obtaining a judgment against you for damages caused by your breach of the foregoing covenants of this Section 5.

 6. Prior Acknowledgment .  In connection with a Termination which entitles you to CIC Payments pursuant to Section 3(b), your agreement not to voluntarily terminate your employment with the Company or any of its affiliates, which is set forth in any Acknowledgement previously executed by you as a condition of payment of an Annual Incentive Award, shall terminate, shall no longer be a condition of your right to retain such Annual Incentive Award, and shall be of no further force or effect.

7. Miscellaneous .

 

(a)      Successors . The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

(b)      Binding Agreement . This Agreement shall inure to the benefit of and be enforceable by you and your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. In the event of your death, all amounts otherwise payable to you hereunder shall, unless otherwise provided herein, be paid in accordance with the terms of this Agreement to your devisee, legatee or other designee or, if there is no such designee, to your estate.

 

(c)      Notice . Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when (i) personally delivered or (ii) mailed by United States certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth on the first page of this Agreement; provided that all notice to the Company shall be directed to the attention of the Board with a copy to the Chief Executive Officer of the Company, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.

 

(d)      Modifications . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by you and such officer as may be designated by the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the time or at any prior or subsequent time.

 

(e)      Governing Law . THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.

 

(f)      Tax Withholding . Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state or local law.

 

(g)      Surviving Obligations . The obligations of the Company and your obligations under this Agreement shall survive the expiration of this Agreement to the extent necessary to give effect to this Agreement.

 

(h)      Validity . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

(i)      Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

 

(j)      Entire Agreement . This Agreement sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes the provisions of all prior agreements (including any prior Change in Control Agreement between the parties), promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereof with respect to the subject matter contained herein. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. Notwithstanding anything to the contrary in this Agreement, the procedural provisions of this Agreement shall apply to all benefits payable as a result of a Change in Control (or other change in control).

 

If this letter sets forth our agreement on the subject matter hereof, kindly sign and return to the Company the enclosed copy of this letter, which will then constitute our agreement on this subject.

 

 

 

Exhibit A

General Release

For good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, I, for myself and my successors, assigns, heirs and representatives (each, a "Releasing Party"), hereby release and forever discharge Comtech Telecommunications Corp. (the "Company"), its stockholders, officers, directors, employees, agents and attorneys, and their respective successors, assigns, heirs and representatives (each, a "Released Party"), individually and collectively, from any and all claims, demands, causes of action, liabilities or obligations, known or unknown, pending or not pending, liquidated or not liquidated, of every kind and nature whatsoever (collectively, the "Released Claims") which the Releasing Party has, has had or may have against any one or more of the Released Parties arising out of, based upon or in any way, directly or indirectly, related to the Company's business, my employment with the Company or the termination of such employment; provided , however , that this General Release shall have no effect whatsoever upon: (a) the Company's obligations, if any, to pay CIC Payments pursuant to the Change in Control Agreement between the undersigned and the Company, dated [Date] (the “CIC Agreement”) or the rights of the undersigned to enforce such obligations; (b) any and all obligations of the Released Parties to defend, indemnify, hold harmless or reimburse the undersigned under the Indemnification Agreement between the Company and the undersigned, and/or under applicable law and/or under the respective charters and by-laws of the Released Parties, and/or pursuant to insurance policies, if any, for acts or omissions in the undersigned’s capacity as a director, officer and/or employee thereof; and (c) any and all rights the undersigned may have to vested or accrued benefits or entitlements under and in accordance with any applicable plan, agreement, program, award, policy or arrangement of a Released Party.

The Released Claims include, without limitation, (a) all claims arising out of or relating to breach of contract, the Fair Labor Standards Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the National Labor Relations Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act and/or any other federal, state or local statute, law, ordinance, regulation or order as the same may be amended or supplemented from time to time, (b) all claims for back pay, lost benefits, reinstatement, liquidated damages, punitive damages, and damages on account of any alleged personal, physical or emotional injury, and (c) all claims for attorneys' fees and costs.

I agree that I am voluntarily executing this General Release. I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 and that the consideration given for the waiver and release 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 Age Discrimination in Employment Act of 1967, that: (a) my waiver and release specified herein does not apply to any rights or claims that may arise after the date I sign this General Release or my rights with respect to CIC Payments, if any, payable to me pursuant to the CIC Agreement; (b) I have the right to consult with an attorney prior to signing this General Release; (c) I have twenty-one (21) days to consider this General Release (although I may choose to sign it earlier); (d) I have seven (7) days after I sign this General Release to revoke it; and (e) this General Release will not be effective until the date on which the revocation period has expired, which will be the eighth day after I sign this General Release, assuming I have returned it to the Company by such date.

Dated:                                                   

Schedule 5(iii)

[Competitor Entities]

Exhibit 10.7

Amendment to Sixth Amended and Restated Employment Agreement

This Amendment to Employment Agreement (the “ Amendment ”) is made and entered into effective as of June 6, 2017 (the “ Amendment Effective Date ”) by and between Comtech Telecommunications Corp. (the “ Company ”) and Fred Kornberg (“ Kornberg ”).

WHEREAS, the Company and Kornberg entered into that certain Sixth Amended and Restated Employment Agreement (the “ Agreement ”), dated as of November 18, 2016;

WHEREAS, pursuant to Section 14 of the Agreement, the Agreement may be amended only by a written instrument signed by the Company and Kornberg;

WHEREAS, the Company and Kornberg desire to amend Section 7(a)(ii) of the Agreement on the terms set forth herein; and

WHEREAS, the Board of Directors of the Company has approved this Amendment on the terms set forth herein.

NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein, the Company and Kornberg, intending to be legally bound, hereby agree as follows, effective as of the Amendment Effective Date:

“an amount equal to 2.5 times Kornberg’s average Incentive Compensation plus Annual Incentive Awards under the 2000 Plan actually paid or payable for performance in the three fiscal years preceding the year in which the Termination of Employment occurs (which for this purpose shall also include any annual incentive amounts paid to Kornberg for service to the Company or to a subsidiary that was at the time of such service wholly owned (directly or indirectly) by the Company). “Annual Incentive Award” shall include for this purpose the annual incentive compensation (including for this purpose the grant date fair value of any long term performance share award, restricted stock, stock options or any other equity based award) during the applicable period or any award to the extent specified by the Board of Directors of the Company (or a committee thereof) in the relevant award agreement or any other equity based awards in each case paid or payable or granted during the relevant period in lieu of the relevant annual non-equity incentive compensation for that fiscal year; provided that, (A) the grant date fair value of any equity based award granted as annual incentive compensation shall be included in the computation of the annual incentive amounts paid or granted in any applicable fiscal year based upon the grant date fair value of such award for accounting purposes and (B) any dividend equivalents paid or payable with respect to such an equity based award shall not be considered annual incentive compensation; plus ”.

2. Except as specifically set forth herein, the Agreement and all of its terms and conditions remain in full force and effect, and the Agreement is hereby ratified and confirmed in all respects, except that on or after the Amendment Effective Date all references in the Agreement to “this Agreement,” “hereto,” “hereof,” “hereunder,” or words of like import shall mean the Agreement as amended by this Amendment.

3. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original and such counterpart together shall constitute one and the same instrument.

4. This Amendment, including the validity, interpretation, construction and performance of this Amendment, shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such State, without regard to such State’s conflicts of law principles.

5. This Amendment shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto. The Agreement, as amended by this Amendment, embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof.

[Signature page follows]

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

Exhibit 10.8

LONG TERM PERFORMANCE SHARE AWARD AGREEMENT

PURSUANT TO THE

COMTECH TELECOMMUNICATIONS CORP.

2000 STOCK INCENTIVE PLAN

 

THIS LONG TERM PERFORMANCE SHARE AWARD AGREEMENT (this “ Agreement ”), made effective as of [GRANT DATE], by and between Comtech Telecommunications Corp. (the “ Company ”) and [PARTICIPANT NAME] (the “ Participant ”).

WHEREAS, the Board of Directors of the Company (the “ Board ”) adopted, and the stockholders of the Company approved, the Comtech Telecommunications Corp. 2000 Stock Incentive Plan (Amended and Restated Effective [DATE]) (the “ Plan ”);

WHEREAS, pursuant to Section 3.3 of the Plan, the Committee appointed by the Company’s Board of Directors to administer the Plan (the “ Committee ”) has adopted the Guidelines for Deferrable Long Term Performance Shares Granted under the Plan, as amended and in effect at the date hereof (the “ Guidelines ”);

WHEREAS, the Company, through the Committee under the Plan, wishes to grant to the Participant a Performance Share Award under Article IX of the Plan that, following the achievement of the specified levels of performance, as set forth on the document titled “Performance Goals and Corresponding Earned Shares” attached hereto as Appendix A (the “ Performance Goals ”), and, subject to the Participant’s continuing service with the Company or an Affiliate through the Final Certification/Vesting Date (as defined below), may provide for the issuance of a number of shares of the Company’s Common Stock corresponding to the level of achievement of the Performance Goals (subject to accelerated earning, vesting and payment of such shares as specifically provided herein);

WHEREAS, the Performance Goals are intended to constitute “Performance Goals,” as set forth under the Plan; and

WHEREAS, such shares of Common Stock, when issued to the Participant, shall be subject to the terms of this Agreement.

NOW, THEREFORE, the Company and the Participant agree as follows

1. Grant of Performance Share Award .  Subject to the restrictions, terms and conditions of the Plan, the Guidelines and this Agreement, on [GRANT DATE] (the “ Grant Date ”) the Company awarded and granted to the Participant an award under Article IX of the Plan with the designated target number of [TARGET PERFORMANCE SHARES] Performance Shares (the “ Target Performance Shares ”), and providing to the Participant a conditional right to earn the Target Performance Shares, or a number of Performance Shares for each Applicable Performance Period (as defined below) ranging from 70% (at each applicable Threshold Performance level) to 200% (at each applicable Maximum Performance level) of the Target Performance Shares, by achievement of the designated levels of performance of each performance criteria as specified in the Performance Goals attached hereto as Appendix A, the earning of which would entitle the Participant to receive for each Performance Share earned, in accordance with Section 2 below, one share of Common Stock, subject to the provisions of Sections 3 and 4 below (the “ Performance Share Award ”).  The Performance Shares granted under the Performance Share Award are Deferrable Performance Shares under the Guidelines, and the payment of shares of Common Stock upon vesting of Earned Shares (as defined below) in accordance with the terms and conditions of this Agreement may be deferred by the Participant in accordance with Section 4.2 of the Guidelines.  If the Participant desires to defer the payment of Earned Shares, the Participant must complete an election form prescribed by the Committee and deliver it to the Company no later than six months before the end of the Performance Period (as defined in Section 2) or, if earlier, the date the number of Performance Shares to be earned has become readily ascertainable within the meaning of Treasury Regulation Section 1.409A-2(a)(8).

2.  Certification/Vesting Date .  Subject to the Participant’s not incurring a Termination of Employment prior to the Final Certification/Vesting Date (except as otherwise specifically set forth in this Agreement), upon the Committee determining and certifying the achievement of the applicable Performance Goals on each of the applicable Annual Certification Dates with respect to the performance period beginning on [FULL PERFORMANCE PERIOD] (the “ Full Three-Year Performance Period ”), the performance period commencing on [FIRST APPLICABLE PERFORMANCE PERIOD], or the performance period beginning on [SECOND APPLICABLE PERFORMANCE PERIOD] (each an “ Applicable Performance Period ”), the Participant shall have the right to receive one share of Common Stock for each Performance Share earned based on the level of attainment of the applicable Performance Goals for the Applicable Performance Period in accordance with Appendix A (“ Earned Shares ”) during the Applicable Performance Period, subject to the Participant meeting the service-based vesting requirements of Section 3.  The Committee shall certify the level of achievement of each of the Performance Goals no later than seventy-five (75) days following the end of the

Applicable Performance Period (the date of each such certification the “ Annual Certification Date ”, and the date of the Annual Certification Date following the Full Three-Year Performance Period, the “ Final Certification/Vesting Date ”). If on the Final Certification/Vesting Date the Committee determines and certifies that the Performance Goal has not been achieved at the designated Threshold Performance level, then all of the remaining unearned Performance Shares subject to such Performance Goal shall be forfeited on the Final Certification/Vesting Date. If on the Final Certification/Vesting Date the Committee determines and certifies that the Performance Goal has been achieved at a level equal to or greater than the designated Threshold Performance level but less than the designated Target Performance level or the designated Maximum Performance level, then any Performance Shares subject to such Performance Goal in excess of the number of Earned Shares as determined in accordance with Appendix A shall be forfeited on the Final Certification/Vesting Date. In the event of achievement of a Performance Goal between performance levels, the number of Earned Shares will be determined based upon linear interpolation.

3.  Death or Disability/Change in Control before the Final Certification/Vesting Date; Effect of Terminations of Employment .

3.1.   Death, Disability and Termination of Employment . 

3.2.   409A Change in Control .  In the event of a 409A Change in Control prior to the Final Certification/Vesting Date, no acceleration of earning or vesting shall occur with respect to the Performance Shares solely due to such event if the Committee has reasonably determined in good faith, prior to the Assumption Deadline (as defined below), that the Performance Shares shall be honored or assumed, or new awards substituted therefor (each such honored, assumed or substituted Performance Share hereinafter called an “Alternative Performance Share”), by Participant's employer (or the parent or a subsidiary of such employer) by the Assumption Deadline, provided that such Alternative Performance Shares must meet the following criteria:

will be so traded within thirty (30) days after the 409A Change in Control, or provide for a cash payment not less than the cash value of the Performance Share based on the highest consideration per share received by a holder of Common Stock in the transaction or series of transactions that gave rise to the 409A Change in Control;

(iii)The Alternative Performance Share must have economic value substantially equivalent to the value of each Performance Share (such equivalent values to be determined as of the time of the 409A Change in Control);

If the foregoing conditions are not met by the Assumption Deadline (as defined below) (with reasonable provision made for compliance with those conditions to be performed after the Assumption Deadline), the Performance Goal shall be deemed to be satisfied at a level equal to the greater of the designated Target Performance level or the Projected Performance Level (as defined in Appendix A) as of the date of such 409A Change in Control, and the resulting number of earned Performance Shares, which shall be the resulting Earned Shares, shall become fully vested as of the 409A Change in Control (including in the case of a Participant whose employment terminated between the time of the 409A Change in Control and the Assumption Deadline) and shall (subject to Plan Section 17.13) be distributed to the Participant within sixty (60) days following the end of the fiscal quarter in which the 409A Change in Control occurs. For purposes of this Section 3.2, the “Assumption Deadline” shall be the date of the 409A Change in Control if the Company had at least twenty (20) days’ advance notice that the 409A Change in Control was anticipated to occur, and otherwise the Assumption Deadline shall be the date ten (10) business days after the 409A Change in Control.

The provisions of this Agreement supersede Plan Section 14.1(a).

4.  Vesting and Distribution of Earned Shares . Subject to Sections 3 and 5, Earned Shares shall vest and become payable at the Final Certification/Vesting Date if the Participant has not incurred a Termination of Employment prior to the Final Certification/

Vesting Date. Vested Earned Shares shall be distributed to the Participant on the Final Certification/Vesting Date; provided, that in the event the Participant has made a valid deferral election in accordance with Section 4.2 of the Guidelines the vested Earned Shares shall be distributed to the Participant in accordance with such deferral election and the Guidelines (a “ Deferral Election ”).

Except as otherwise provided herein, there shall be no proportionate or partial vesting in the periods prior to the Final Certification/Vesting Date and all vesting shall occur only on the Final Certification/Vesting Date. 

5.  Dividend Equivalents . In the event that the Company declares and pays ordinary cash dividends on its outstanding Common Stock the record date for which is on or after the Grant Date and on or before the date of distribution of Earned Shares (including during any period of deferral at the election of the Participant), the Participant shall be credited, as of the dividend payment date, for each Performance Share that is potentially earnable under this Agreement, a cash amount equivalent to the cash amount paid at that date on one share of Common Stock, under Plan Section 9.2(d). Such credited cash amount of dividend equivalents shall be earned and vested if and only if the related Performance Share becomes earned and vested (i.e., it is forfeitable to the same extent as the related Performance Share). No interest will be credited on accrued dividend equivalents. Dividend equivalents will be distributable at such time as the Earned Shares resulting from the earning and vesting of the Performance Shares to which the dividend equivalents relate are distributed; provided, however, that the Company may withhold cash dividend equivalents to satisfy then applicable tax withholding obligations relating to Earned Shares (to minimize the number of Earned Shares being withheld to satisfy tax obligations) under Section 12.

6.  Detrimental Activity .  In the event the Participant engages in Detrimental Activity prior to, or during the one (1) year period following the earlier of the Participant’s Termination of Employment or the Final Certification/Vesting Date, the Committee may direct (at any time within one year thereafter) that all Performance Shares shall be immediately forfeited to the Company and that the Participant shall pay over to the Company an amount equal to the gain realized at the time of vesting of any Earned Shares. 

7.  Restrictions on Transfer .   The Participant shall not sell, negotiate, transfer, pledge, hypothecate, assign, encumber, anticipate or otherwise dispose of the Performance Share Award or Performance Shares, and such Performance Share Award and Performance Shares shall not be subject to attachment or garnishment by creditors of Participant or Participant’s beneficiaries (if any), except as specifically permitted by the Plan and this Agreement, and only to the extent permitted under Code Section 409A.  Any attempted Transfer in violation of this Agreement and the Plan shall be void and of no effect. 

8.  Issuance Restrictions .  The Company is not obligated to issue any securities if, in the opinion of counsel for the Company, the issuance of such Common Stock shall constitute a violation by the Participant or the Company of any provisions of any law or of any regulations of any governmental authority or any national securities exchange.

9.  Securities Representations .  The shares of Common Stock will be issued to the Participant and this Agreement is being made by the Company in reliance upon the following express representations and warranties of the Participant.  The Participant acknowledges, represents and warrants that:

9.1.  The Participant has been advised that the Participant may be an “affiliate” within the meaning of Rule 144 under the Securities Act and in this connection the Company is relying in part on the Participant’s representations set forth in this section;

9.2.  The Common Stock must be held indefinitely by the Participant unless (i) an exemption from the registration requirements of the Securities Act is available for the resale of such Common Stock or (ii) the Company files an additional registration statement (or a “re-offer prospectus”) with regard to the resale of such Common Stock and the Company is under no obligation to continue in effect a Form S-8 Registration Statement or to otherwise register the resale of the Common Stock (or to file a “re-offer prospectus”);

9.3.  The exemption from registration under Rule 144 will not be available under current law unless (i) a public trading market then exists for the Common Stock, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144 or any exemption therefrom are complied with and that any sale of the Common Stock may be made only in limited amounts in accordance with such terms and conditions.

10.  Not an Employment Agreement .  Neither the execution of this Agreement nor the issuance of the Performance Share Award or the Common Stock hereunder constitute an agreement by the Company to employ or to continue to employ the Participant during the entire, or any portion of, the term of this Agreement, including but not limited to any period during which any shares of Common Stock are outstanding.

11.  Power of Attorney .  The Company, its successors and assigns, is hereby appointed the attorney-in-fact, with full power of substitution, of the Participant for the purpose of carrying out the provisions of this Agreement and taking any action and executing

any instruments which such attorney-in-fact may deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest.  The Company, as attorney-in-fact for the Participant, may in the name and stead of the Participant, make and execute all conveyances, assignments and transfers of Common Stock and property provided for herein, and the Participant hereby ratifies and confirms that which the Company, as said attorney-in-fact, shall do by virtue hereof.  Nevertheless, the Participant shall, if so requested by the Company, execute and deliver to the Company all such instruments as may, in the judgment of the Company, be advisable for this purpose.

12.  Withholding .  The Participant acknowledges that the Participant is solely responsible for all applicable foreign, federal, state, and local taxes with respect to the Performance Share Award and the payments thereunder; provided, however, that at any time the Company is required or permitted to withhold any such taxes (including, without limitation, any employment taxes), the Participant shall pay, or make arrangements to pay, in a manner satisfactory to the Company, an amount equal to the amount of all applicable federal, state and local or foreign taxes that the Company is required or permitted to withhold at any time, including, if then permitted by the Company, by electing to reduce the number of shares of Common Stock otherwise then deliverable to the Participant under this Agreement.  Unless the Participant has informed the Company of the Participant’s intent to make alternate arrangements to satisfy the Participant’s withholding obligations satisfactory to the Company within either sixty (60) days in advance of the applicable tax date or at a time when the participant is not otherwise precluded from trading Common Stock under the Company’s insider trading policies (unless otherwise determined by the Company) and relevant amounts are actually paid, the Company or one of its Affiliates shall have the automatic right to withhold such taxes from any amounts payable to the Participant (including salary, wages and other compensation), including, but not limited to, the right to withhold shares of Common Stock otherwise deliverable to the Participant under this Agreement. The Company will withhold taxes (e.g., federal, state and local taxes, including payroll taxes) in an amount at least equal to the statutory minimum taxes required to be withheld; provided, however, at the Participant’s advance election the participant may request the Company withhold additional amounts up to the Participant’s maximum individual tax rate in each relevant jurisdiction applicable to the Participant at such time of withholding, so long as the withholdings do not result in this Performance Share Award being classified as a liability-based award in accordance with applicable accounting standards.

13.  Miscellaneous .

13.1.  This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, personal legal representatives, successors, trustees, administrators, distributees, devisees and legatees.  The Company may assign to, and require, any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company or any affiliate by which the Participant is employed to expressly assume and agree in writing to perform this Agreement.  Notwithstanding the foregoing, the Participant may not assign this Agreement other than with respect to shares of Common Stock Transferred in compliance with the terms hereof.

13.2.  This award of the Performance Share Award and the issuance of Common Stock thereunder shall not affect in any way the right or power of the Board or stockholders of the Company to make or authorize an adjustment, recapitalization or other change in the capital structure or the business of the Company, any merger or consolidation of the Company or subsidiaries, any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock, the dissolution or liquidation of the Company, any sale or transfer of all or part of its assets or business or any other corporate act or proceeding.  Performance Shares and Earned Shares shall be subject to adjustment in accordance with Section 4.2(b) of the Plan, including during any period in which payment of the Award is deferred at the election of Participant.  For clarity, ordinary dividends on Common Stock will not trigger adjustments to Performance Shares and Earned Shares, and any adjustments to Performance Shares and Earned Shares shall take into account dividend equivalents credited thereon under Section 5.

13.3.  The Participant agrees that the award of the Performance Share Award under this Agreement and the issuance of Common Stock thereunder is special incentive compensation and that the Performance Share Award (even if treated as compensation for tax purposes) will not be taken into account as “salary” or “compensation” or “bonus” in determining the amount of any payment under any pension, retirement or profit-sharing plan of the Company or any life insurance, disability or other benefit plan of the Company.

13.4.  No modification or waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by the party against whom it is sought to be enforced.

13.5.  The failure of any party hereto at any time to require performance by another party of any provision of this Agreement shall not affect the right of such party to require performance of that provision, and any waiver by any party of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement.

13.6.  The headings of the sections of this Agreement have been inserted for convenience of reference only and shall in no way restrict or modify any of the terms or provisions hereof.

13.7.  All notices, consents, requests, approvals, instructions and other communications provided for herein shall be in writing and validly given or made when delivered, or on the second succeeding business day after being mailed by registered or certified mail, whichever is earlier, to the persons entitled or required to receive the same, at the addresses set forth at the heading of this Agreement or to such other address as either party may designate by like notice.  Notices to the Company shall be addressed to the Compensation Committee of the Board.

13.8.  This Agreement shall be construed, interpreted and governed and the legal relationships of the parties determined in accordance with the internal laws of the State of Delaware without reference to rules relating to conflicts of law.

13.9.  The right to receive each payment of Earned Shares shall be treated as a separate award for purposes of Section 409A of the Code.

14.  Rights as a Stockholder.   The Participant shall have no rights as a stockholder with respect to any shares of Common Stock covered by the Performance Share Award unless and until the Participant has become the holder of record of the shares of Common Stock. 

15.  Provisions of Plan Control .   This Agreement is subject to all the terms, conditions and provisions of the Plan, including, without limitation, the amendment provisions thereof, and to such rules, regulations and interpretations relating to the Plan as may be adopted by the Committee and as may be in effect from time to time.  The Plan is incorporated herein by reference.  A copy of the Plan has been delivered to the Participant.  If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and this Agreement shall be deemed to be modified accordingly.  Unless otherwise indicated, any capitalized term used but not defined herein shall have the meaning ascribed to such term in the Plan.  This Agreement contains the entire understanding of the parties with respect to the subject matter hereof (other than any other documents expressly contemplated herein or in the Plan) and supersedes any prior agreements between the Company and the Participant.

16.  Agreement and Grant Not Effective Unless Accepted. By signing below the Participant agrees (i) to enter into this Agreement, and (ii) to the terms and conditions of the Agreement. Until the Participant signs below and the Agreement is countersigned by the Company, this Performance Share Award shall not be effective and, if the Participant does not sign below and return to the Company within 14 days from the date the Agreement is made available to the Participant, this Performance Share Award shall be null and void.

 

IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above written.

APPENDIX A

LONG TERM PERFORMANCE SHARE AWARD AGREEMENT

Performance Goal and Corresponding Earned Shares

Under the Comtech Telecommunications Corp.

2000 Stock Incentive Plan, as Amended and Restated [DATE]

Fiscal [YEAR - YEAR] Performance Period

The Participant shall earn Performance Shares in accordance with the provisions set forth below, with any earned Performance Shares constituting Earned Shares under the Participant’s Long Term Performance Share Award Agreement of which this Appendix is a part (the “Performance Share Agreement”). Capitalized terms in this Appendix shall have the meanings as defined in the Performance Share Agreement.

[PERFORMANCE GOALS]