March 20, 2002

 

Robert C. Fitting

Chief Executive Officer

3138 East Elwood Street

Phoenix, AZ  85034

 

         Re:      Your Change in Control Agreement

 

Dear Bob:

 

         Upon execution by you, this letter will constitute your Change in

Control Agreement ("Agreement") with Radyne ComStream Corp., (the "Company").

 

1.       Term. This Agreement will become effective March 14, 2002 and will

         terminate when you terminate your employment with the Company.

 

2.       Termination in Connection with a Change in Control. In the event of a

         Change of Control (as defined in the Company's Long-Term Incentive

         Plan, a copy of which definition is attached), you will be entitled to

         receive the following:

 

         (a)      Immediately prior to the effective date of a Change of

                  Control, all stock options granted to you and not otherwise

                  vested shall vest and become exercisable by you for a minimum

                  of 90 days (or, if longer, the term of the options thereof) so

                  that you may participate in the Change of Control transaction

                  to the fullest extent feasible, provided, however, that if the

                  acceleration of your options would cause a charge to the

                  Company's earnings, then at the Company's option it may offer

                  you a consulting position for the term of your options during

                  which your options would continue to vest;

 

         (b)      Upon any termination of your employment after a Change of

                  Control, for a period of eighteen months from the date of your

                  termination, the Company will pay for the COBRA benefits due

                  you;

 

         (c)      Upon a Change in Control, you shall be paid in a lump sum an

                  amount equal to three times your current salary from the

                  Company;

 

         (d)      To the extent that the benefits provided to you upon a Change

                  in Control would exceed the amount deductible pursuant to

                  Section 280G of the Internal Revenue Code (or any successor

                  law), or the rules and regulations thereunder, and thereby

                  result in an excise tax payable by you, then at least 30 days

                  prior to the due date of any such tax, the Company shall pay

                  you an amount equal the tax (together with any tax on such

                  payment).

<PAGE>

3.       Covenant Not to Compete.

 

         (a)      For a period of 1 year from any termination of your

         employment, (or, if later, upon conclusion of your service as a

         consultant), you shall not, directly or indirectly, for your own

         benefit or for, with or through any other individual, firm,

         corporation, partnership or other entity, whether acting in an

         individual, fiduciary or other capacity, own, manage, operate, control,

         advise, invest in (except as a 1% or less shareholder of a public

         company), loan money to, or participate or assist in the ownership,

         management, operation or control of or be associated as a director,

         officer, employee, partner, consultant, advisor, creditor, agent,

         independent contractor or otherwise with, or acquiesce in the use of

         your name by, any business enterprise that is in direct competition

         with the Company or any subsidiary within the United States of America

         or any other country that the Company conducts business at the time of

         your termination.

 

         (b)      In addition to the foregoing, at all times during the period

         of your employment and for 1 year after any termination thereof (or, if

         later, upon conclusion of your services as a consultant), you will not,

         directly or indirectly (as described above), for your benefit or for,

         with or through any business, hire, employ, solicit, or otherwise

         encourage or entice any of the Company's (or subsidiary's) employees or

         consultants to leave or terminate their employment with the Company.

 

         (c)      You and the Company consider the restrictions contained in

         subparagraphs (a) and (b) above to be reasonable for the purpose of

         preserving the Company's proprietary rights and interests. If a court

         makes a final judicial determination that any such restrictions are

         unreasonable or otherwise unenforceable against you, you and the

         Company hereby authorize such court to amend this Agreement so as to

         produce the broadest, legally enforceable agreement, and for this

         purpose the restrictions on time period, geographical area and scope of

         activities set forth in subparagraphs (a) and (b) above are divisible;

         if the court refuses to do so, you and the Company hereto agree to

         modify the provisions held to be unenforceable to preserve each party's

         anticipated benefits thereunder to the maximum extent legal.

 

         (d)      You acknowledge and agree that the Company's remedies at law

         for breach or threatened breach of any of the provisions of this

         Paragraph would be inadequate. Therefore, you agree that in the event

         of a breach or threatened breach by you of the provisions in this

         Paragraph, the Company shall be entitled to, in addition to its

         remedies at law and without posting any bond, equitable relief in the

         form of specific performance, a temporary restraining order, a

         temporary or permanent injunction, or any other equitable remedy that

         may then be available.

 

4.       Personal Rights and Obligations. This Agreement and all rights and

         obligations hereunder are personal and shall not be assignable by

         either you or the Company except as provided in this subparagraph, and

         any purported assignment in violation thereof shall be null and void.

         Any person, firm or corporation succeeding to the business of the

         Company by merger, consolidation, purchase of assets or otherwise,

         shall assume by contract or operation of law the obligations of the

         Company hereunder and in such a case

 

 

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<PAGE>

         you shall continue to honor this Agreement with such business

         substituted for the Company as the employer.

 

5.       Notices. Any notice, election or communication to be given under this

         Agreement shall be in writing and delivered in person or deposited,

         certified or registered, in the United States mail, postage prepaid,

         addressed as follows:

 

         If to the Company:         Radyne ComStream Corp.

                                    3138 East Elwood Street

                                    Phoenix, Arizona 85034

                                    Attn:  Chief Executive Officer

 

         If to you:                 Robert C. Fitting

                                    c/o Radyne ComStream Corp.

                                    3138 East Elwood Street

                                    Phoenix, AZ  85034

 

         or to such other addresses as the Company or you may from time to time

         designate by notice hereunder. Notices will be effective upon delivery

         in person or upon receipt of any facsimile or e-mail, or at midnight on

         the fourth business day after the date of mailing, if mailed.

 

6.       Entire Agreement. Except for any confidentiality agreement, option

         grants or Company plans or policies, to which you are subject, this

         Agreement constitutes and embodies the full and complete understanding

         and agreement of the Company and you with respect to your employment by

         the Company and supersedes all prior understandings or agreements

         whether oral or in writing. This Agreement may be amended only by a

         writing signed by you and the Company. This Agreement may be executed

         in any number of counterparts, each of which will be considered a

         duplicate original.

 

7.       Binding Nature of Agreement. This Agreement shall be binding upon and

         inure to the benefit of the Company and its successors and assigns and

         shall be binding upon you, your heirs and legal representatives.

 

8.       Arbitration. Any controversy relating to this Agreement or relating to

         the breach hereof shall be settled by arbitration conducted in Phoenix,

         Arizona in accordance with the Commercial Arbitration Rules of the

         American Arbitration Association then in effect. The award rendered by

         the arbitrator(s) shall be final and judgment upon the award rendered

         by the arbitrator(s) may be entered upon it in any court having

         jurisdiction thereof. The arbitrator(s) shall possess the powers to

         issue mandatory orders and restraining orders in connection with such

         arbitration. The expenses of the arbitration shall be borne by the

         losing party unless otherwise allocated by the arbitrator(s). This

         agreement to arbitrate shall be specifically enforceable under the

         prevailing arbitration law. During the continuance of any arbitration

         proceedings, the parties shall continue to perform their respective

         obligations under this Agreement. Nothing in this Agreement shall

         preclude the Company or any affiliate or successor from seeking

         equitable relief, including injunction or specific performance, in any

         court having jurisdiction, in

 

 

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<PAGE>

         connection with the non-compete provisions herein and any obligations

         of confidentiality.

 

9.       Governing Law. This Agreement shall be governed by and interpreted in

         accordance with the laws of the State of Arizona.

 

10.      Withholding and Release. You acknowledge and agree that payments made

         to you hereunder may be subject to taxes and withholding. You further

         acknowledge and agree that payment of any of the benefits to be

         provided to you under this Agreement following any termination of your

         employment is subject to:

 

         (a)      your compliance with your agreements hereunder, including in

         particular the non-competition provisions of Paragraph 3,

 

         (b)      any reasonable and lawful policies or procedures of the

         Company relating to employee severances; and

 

         (c)      the execution and delivery by you of a release reasonably

         satisfactory to the Company of any and all claims that you may have

         against the Company or related persons, except for (i) the continuing

         obligations provided herein, and (ii) for any continuing obligations of

         indemnification due you as an officer or director (or a former officer

         or director).

 

                                             Very truly yours,

 

 

 

 

                                             ------------------------

                                             Ming Seong Lim

                                             Chairman of the Board

 

ACCEPTED:

 

------------------------------

Robert C. Fitting

 

Date:

     -------------------------

 

 

                                       4

<PAGE>

                                   DEFINITIONS

 

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

 

         (1)      materially breach this Agreement;

 

         (2)      fail to follow any reasonable and lawful direction of the

Board of Directions of the Company or materially violate any reasonable rule or

regulation established by the Company from time to time regarding conduct of its

business;

 

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

 

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

to your employment); or

 

         (5)      fail to perform your duties satisfactorily.

 

"Change of Control" means any of the following:

 

         (1)      any merger of the Company in which the Company is not the

continuing or surviving entity, or pursuant to which Stock would be converted

into cash, securities, or other property other than a merger of the Company in

which the holders of the Company's Stock immediately prior to the merger have

the same proportionate ownership of beneficial interest of common stock or other

voting securities of the surviving entity immediately after the merger;

 

         (2)      any sale, lease, exchange or other transfer (in one

transaction or a series of related transactions) of assets or earning power

aggregating more than 50% of the assets or earning power of the Company and its

subsidiaries (taken as a whole), other than pursuant to a sale-leaseback,

structured finance or other form of financing transaction;

 

         (3)      the shareholders of the Company approve any plan or proposal

for liquidation or dissolution of the Company;

 

         (4)      any person (as such term is used in Section 13(d) and 14(d)(2)

of the Exchange Act), other than any current shareholder of the Company or

affiliate thereof or any employee benefit plan of the Company or any subsidiary

of the Company or any entity holding shares of capital stock of the Company for

or pursuant to the terms of any such employee benefit plan in its role as an

agent or trustee for such plan, shall become the beneficial owner (within the

meaning of Rule 13d-3 under the Exchange Act) of 50% or more of the Company's

outstanding Stock; or

 

         (5)      during any two-year period, individuals who at the beginning

of such period do not constitute a majority of the Board at the end of that

period, excluding any new director approved by a vote of at least two-thirds of

the directors who were directors at the beginning of the period.

 

 

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