AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") made as
of the Consummation Date (defined below) by and between the undersigned
employee, residing at the address indicated below (hereinafter referred
to as "Employee") and CAI WIRELESS SYSTEMS, INC., a Connecticut
corporation having its principal place of business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to
as the "Company").
1. EMPLOYMENT. The Company hereby employs Employee and Employee
agrees to work for the Company with the title specified on Schedule A
below during the Term (as defined below) of and upon the terms and
conditions set forth in this Agreement.
2. COMPENSATION/BENEFITS. (a) BASE SALARY. During the Term of
this Agreement, the Company agrees to pay Employee the base annual salary
specified on Schedule A below ("Base Salary"). Such Base Salary shall be
reviewed no less frequently than annually during the term of this
Agreement and may be increased but not decreased by the Company=s board
of directors. Such Base Salary shall be payable in accordance with the
Company's normal business practices or in such other amounts and at such
other times as the parties may mutually agree.
(b) BONUSES. During the Term of this Agreement, the Company
shall pay to the Employee an annual bonus of up to 25% of Base Salary,
based upon the Company's achievement of performance targets established
by the Company's board of directors. These targets will be revised
annually within ninety days of the beginning of each fiscal year in
consultation with the Employee. The bonus may be structured as a part of
a deferred compensation arrangement.
(c) INCENTIVE COMPENSATION. During the Term of this
Agreement, Employee shall be entitled to participate in any pooled
incentive programs established by the Company for executive employees.
(d) BENEFITS/VACATION. During the Term of this Agreement, the
Company also shall provide Employee with such other benefits, including
medical, disability, pension and severance plans, as are made generally
available to executive employees of the Company from time to time.
Employee shall be entitled to twenty-six bank days as the vacation,
personal and sick benefit during each year of the Term in accordance with
the policy set forth in the Employee Manual of the Company. Accrued
vacation may be carried over or "sold back" to the Company to the extent
permitted by, and in accordance with, the policy set forth in the
Employee Manual of the Company.
(e) LIFE INSURANCE. Subject to Employee's submitting to any required
physical examinations, the Company shall purchase and maintain in effect
a term insurance policy with a face amount of $1,000,000 or other greater
amount as may be specified in the Company's executive benefit policies or
plans on the life of Employee and shall permit Employee to designate the
beneficiary thereof.
(f) Office/Secretary, etc. During the Term, Employee shall be
entitled to secretarial services and a private office commensurate with
his title and duties.
(g) Club Membership. The Company will pay, or at Employee's
election reimburse, all of the costs of a country club membership at the
club of Employee's choice in the greater Albany area.
3. SERVICES. Employee agrees to devote substantially all of his
working time, attention and energies to the business of the Company and
its Affiliates under the general direction of the board of directors.
Nothing herein shall be interpreted to preclude Employee from
participating as an officer or director of, or advisor to, any charitable
or other tax exempt or civic organization.
4. TERM. The term of this Agreement (the "Term" or the "Term of
this Agreement") shall be for an eighteen (18)-month period beginning on
the Consummation Date and continuing until the first day of the
nineteenth month following the Consummation Date, and shall be
automatically renewed annually thereafter for successive one year periods
on terms no less favorable than are contained herein unless either party
gives notice to the other of its intention not to renew this Agreement
within sixty days of the expiration of the Term of this Agreement. The
Consummation Date is the date so designated under the Plan.
5. EARLY TERMINATION. (a) IN GENERAL. The Employee's employment
hereunder shall be terminated and, other than the obligations listed in
Paragraph 5(b), the Company's obligations hereunder shall cease, including
the obligation to pay compensation for any period after the date of
termination, (i) without the necessity of notice, upon the death of the
Employee, or (ii) upon written notice of a finding by the Company(s
board of directors that the Employee has (a) acted with gross negligence or
willful misconduct in connection with the performance of his duties
hereunder, (b) engaged in a material act of insubordination or of common
law fraud against the Company or its employees, or (c) acted against the
best interests of the Company in a manner that has or could have a material
adverse affect on the financial condition of the Company (any such finding
is referred to herein as "Cause"). Upon any termination of Employee's
employment, the Term of this Agreement shall expire. In the event of
Employee's death or Employee's termination of employment by the Company
other than for Cause, Employee shall be entitled to severance in an amount
equal to one and one-half times his then Base Salary under Paragraph 2
(the "Severance Amount"), payable in twelve equal monthly installments.
If, within eighteen months following the Consummation Date, (a) Employee
terminates his or her employment for Good Reason, or (b) the Company
terminates Employee's employment other than for Cause, the Company shall
pay the Severance Amount in a lump sum not later than ten (10) days
after the date the Company selects as Employee's last day of active
employment (the "Effective Date"), provided, however, that at Employee's
option, the Severance Amount shall be payable to Employee in the form of
equal periodic payments ("Deferred Payment") according to the Company's
regular payroll schedule or at any other intervals elected by Employee
for a period commencing on the first regular payroll pay date beginning
after the Effective Date (the "Deferred Payment Period"). In order to
receive Deferred Payment during a Deferred Payment Period, Employee must
elect such Deferred Payment in writing and specify the Deferred
Payment Period, which may not exceed the number of months of Base
Monthly Salary payable to Employee as the Severance Amount. In the event
of Employee's death during the Deferred Payment Period, any unpaid
Deferred Payment shall be paid in a lump sum to such beneficiary or
beneficiaries designated by Employee in writing or, failing such
designation, to Employee's spouse if Employee is married or to
Employee's estate if Employee is unmarried.
(b) PAYMENTS UPON TERMINATION. Upon termination of this
Agreement for any reason, Employee shall be entitled to all compensation
and benefits earned but not yet paid up to and including the termination
date, including Base Salary, bonus and any other incentive compensation.
Unless otherwise specified in this Agreement, unused vacation shall be
treated in accordance with the policy set forth in the Employee Manual of
the Company.
(c) GOOD REASON. For purposes of this Agreement, Good Reason
shall mean, with respect to Employee, (i) the assignment to Employee of
any material duties materially inconsistent with Employee's position,
authority, duties or responsibilities immediately before the Consummation
Date, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and that is remedied by the
Company promptly after receipt of notice thereof given by Employee;
(ii) any material reduction in Employees Base Salary, opportunity to earn
annual bonuses or other compensation or employee benefits, other than as
a result of an isolated and inadvertent action not taken in bad faith and
that is remedied by the Company promptly after receipt of notice thereof
given by Employee; (iii) the Company's requiring Employee to relocate his
or her principal place of business to a place that is more than thirty-
five miles from his or her previous principal place of business, or (iv)
any purported termination of this Agreement otherwise than as expressly
permitted by this Agreement.
(d) DISABILITY. If Employee shall become unable efficiently
to perform the essential functions of his job, even with reasonable
accommodation, as a result of a disability or illness, as such terms are
defined by the Americans with Disabilities Act, he shall be entitled to
his regular compensation until the total period of disability or illness
(whether or not continuous and whether or not the same disability or
illness) shall exceed 60 days during any calendar year in the Term
hereunder. This Agreement may thereafter be terminated by the Company
and, if such termination is not within two years of the Consummation
Date, the Company's obligations hereunder shall cease, including the
obligation to pay compensation for any period after the date of
termination. Any amounts payable as compensation during the period of
disability or illness shall be reduced by any amounts paid during such
period under any disability plan or similar insurance of the Company.
6. EMPLOYER'S AUTHORITY. Employee agrees to observe and comply
with the rules and regulations of the Company as adopted by the Company's
board of directors respecting the performance of his duties and to carry
out and perform orders, directions and policies communicated to him from
time to time.
7. EXPENSES. During the Term of this Agreement, the Company shall
reimburse Employee for the reasonable business expenses incurred by
Employee in the course of performing his duties for the Company hereunder
in accordance with the procedures then in place for such reimbursement.
8. AUTOMOBILE ALLOWANCE. During the Term of this Agreement,
Employee shall be entitled to an automobile allowance as specified on
Schedule A below, payable monthly in arrears.
9. NON-DISCLOSURE/NON-COMPETITION. (a) Employee has executed a
Nondisclosure Agreement of the Company. Said agreement shall survive
termination of employment hereunder.
(b) Because Employee's services to the Company are special and
because Employee has access to the Company's confidential information,
Employee covenants and agrees that if (i)(x) Employee's employment is
terminated by the Company for Cause or (y) Employee voluntarily
terminates his employment relationship hereunder with the Company other
than for Good Reason, for a period of six (6) months following the
termination of this Agreement, or (ii) Employee's employment is
terminated and Employee is receiving the Severance Amount, for the period
during which Employee is receiving such Severance Amount under Paragraph
5 hereof, whichever is applicable, he will not, directly or indirectly,
either on his own behalf or on behalf of any person, partnership,
corporation or otherwise, (a) engage in any business or undertaking in a
capacity that is directly competitive with any business (each a "Related
Business") being carried on by the Company or any Affiliate thereof at
the time of Employee's termination of employment, or (b) be employed by
or provide consulting services to or be an investor, partner, member or
shareholder in, any entity or other person in a Related Business within
25 miles of any city in which the Company or any Affiliate thereof, does
business at time of execution or any other city or community in which the
Company or any Affiliate thereof, has a transmission license at the time
of termination, without the prior written consent of the Company's board
of directors. The parties agree that the time period and geographical
area of non-competition specified above are reasonable and necessary in
light of the transactions entered into in this Agreement. If, however,
it shall be determined at any time by a court of competent jurisdiction
that either the time period restriction or the geographical area
restriction, or both, are invalid or unenforceable, the parties agree
that any such restriction determined to be invalid or unenforceable shall
be deemed so amended as to make such restriction valid and enforceable in
the determination of said court, and such restriction, as so amended,
shall be enforceable between the parties to the same extent as if such
amendment had been made as of the date of this Agreement. This
subparagraph 9(b) shall survive the termination of this Agreement.
Notwithstanding anything contained herein to the contrary,
Employee may during and after the Term engage in the following permitted
activities: (i) participate as an officer or director of, or advisor to,
any charitable or other tax exempt organization; and (ii) to the extent
not in a Related Business, may engage in providing services to or
investing in entities, businesses or persons other than the Company,
including but not limited to (A) purchasing securities in private
placements by any corporation or other business entity, PROVIDED, that,
if such investments would otherwise be prohibited by the terms of this
paragraph 9, such investments shall not result in his collectively owning
beneficially at any time ten percent or more of the equity securities of
any corporation or other business entity, (B) engaging in any
telecommunications businesses or ventures, and (C) providing services as
an officer, director, employee or consultant to TelQuest Communications,
Inc., TelQuest Satellite Services LLC, ▇▇▇▇ Capital L.L.C., Crest
International Holdings LLC and any Affiliates or successors thereof, so
long as those efforts by Employee individually or collectively do not
adversely impact on the business of the Company.
10. EXECUTION, DELIVERY AND PERFORMANCE. To the best of Employee's
knowledge, the execution, delivery and performance by Employee of this
Agreement or any other agreement, instrument or document contemplated
herein or hereby will not result in a breach of or conflict with any
terms of any other agreement, instrument or document to which Employee is
a party or by which Employee or his property is bound. No consent or
approval of any person or entity, other than those that have been
obtained by Employee, is required for Employee to execute, deliver and
perform its obligations under this Agreement or any agreement, instrument
or document contemplated herein or hereby.
11. NOTICES. Any notice permitted or required hereunder shall be
deemed sufficient when hand-delivered or mailed by certified mail,
postage prepaid, and addressed if to the Company at the address indicated
above and if to the Employee at the address indicated below (or to such
other address as may be provided by written notice received at least five
(5) business days prior to the hand delivery or mailing of any such
notice).
12. MISCELLANEOUS. (a) This Agreement (i) constitutes the entire
agreement between the parties concerning the subjects hereof and
supersedes any and all prior agreements or understandings, (ii) may not
be assigned by Employee without the prior written consent of the Company,
and (iii) may be assigned by the Company to any Affiliate of the Company
or to the successors or assigns of the Company, provided such successors
or assigns carry on substantially the Company's telecommunications
business as conducted at the time of assignment and shall be binding
upon, and inure to the benefit of, any such Affiliate, successor or
assign.
(b) Headings herein are for convenience of reference only and
shall not define, limit or interpret the contents hereof.
(c) As used herein, the term "Affiliate" shall mean any entity
controlled by or under common control with the Company.
13. AMENDMENT. This Agreement may be amended, modified or
supplemented by the mutual consent of the parties in writing, but no oral
amendment, modification or supplement shall be effective.
14. SPECIFIC ENFORCEMENT. The parties acknowledge that the Company
would be irreparably damaged and there would be no adequate remedy at law
for the Employee's breach of Paragraph 9 of this Agreement, and
accordingly, the terms thereof shall be specifically enforced. Employee
hereby consents to the entry of any temporary restraining order or
preliminary injunction, in addition to any other remedies available at
law or in equity, to enforce the provisions hereof, provided sufficient
facts are shown to warrant such relief.
15. SEVERABILITY. The provisions of this Agreement are severable.
The invalidity of any provision shall not affect the validity of any
other provision.
16. GOVERNING LAW. This Agreement shall be construed and regulated
in all respects under the laws of the State of New York.
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Schedule A
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
Base Salary: $350,000.00
Car Allowance: $750.00
Home Address: ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, this Agreement is entered into as of the date
and year first above written.
CAI WIRELESS SYSTEMS, INC. EMPLOYEE:
By:_____________________________ _______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
(