EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of the 2ND day of
APRIL, 1997 by and between the undersigned employee (hereinafter referred to
as "Employee") residing at the address indicated following Employee's
signature below and CS WIRELESS SYSTEMS, INC., a Delaware corporation having
its principal place of business at 200 Chisholm Place, Suite 202, Plano,
Texas 75075 (hereinafter referred to as the "Company").
1. EMPLOYMENT. The Company hereby employs Employee and Employee agrees to
work for the Company in the capacity set forth on SCHEDULE A hereto 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 (as defined below) the
Company agrees to pay Employee the base annual salary set forth on
SCHEDULE A ("Base Salary"). Such Base Salary shall be reviewed no
less frequently than annually during the Term and may be increased but
not decreased by the 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) INCENTIVE COMPENSATION. During the Term of this Agreement, Employee
shall be entitled to such incentive program, pursuant to the terms of
a separate plan of the Company, as may be in effect from time to time.
Such incentive program shall be based on the following three (3)
components: (i) the achievement of Company performance targets;
(ii) the achievement of Employee performance targets; and
(iii) discretionary bonuses. These performance targets will be
revised annually by the Board of Directors.
(c) STOCK OPTIONS. Employee shall be granted stock options (the "Stock
Options") to purchase shares of Company common stock, $.001 par value
per share, as set forth on SCHEDULE A, pursuant to the Company's 1996
Incentive Stock Plan, as amended, and subject to the terms and
conditions thereof and the stock option agreement in the form attached
as EXHIBIT A hereto.
(d) BENEFITS/VACATION. During the Term, the Company shall provide
Employee with such other benefits, including executive incentive and
bonus plans and medical and disability plans, as are made generally
available to executive employees of the Company from time to time.
Employee shall be entitled to that amount of paid vacation during each
year of the Term as set forth on SCHEDULE A. In addition, Employee
shall be entitled to those benefits set forth on SCHEDULE A.
3. SERVICES. Employee agrees to devote substantially all his working time,
attention and energies to the business of the Company and its Affiliates
(as defined below) under the general direction of the Management Group of
the Company and Chief Executive Officer and hereby agrees to abide by and
implement Company Policies, Strategy Principles and Governance Parameters
as may be adopted from time to time by the Management Group of the Company
in its sole discretion. Employee shall not directly or indirectly, during
the Term of this Agreement, render services, for compensation or otherwise,
to or for any other person or firm in direct competition with the business
of the Company in any market served by the Company or its Affiliates
without the written consent of the Board of Directors. In performing his
duties hereunder, Employee shall be available for reasonable travel as the
needs of the Company's business require. Employee shall work in the
Company's Plano, Texas office, unless otherwise indicated on SCHEDULE A.
4. TERM. The term of this Agreement (the "Term" or the "Term of this
Agreement") shall be for the period set forth on SCHEDULE A.
5. EARLY TERMINATION.
(a) GENERAL. The Employee's employment hereunder is at will and shall be
terminated and the Company's obligations hereunder shall cease,
including the obligation to pay compensation for any period after the
date of termination, (i) immediately upon notice, in the sole
discretion of the Company, (ii) without the necessity of notice, upon
the death of the Employee, or (iii) upon written notice of a finding
by at least 60% of the members of the 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 an adverse affect on
the financial condition of the Company (death of an Employee or any
such findings is referred to herein as "Cause"). Upon the Company's
termination of Employee for any reason other than Cause, the Company
shall pay Employee: (i) severance in an amount (the "Severance
Amount") equal to the greater of (x) his then Base Salary under
PARAGRAPH 2, payable in twelve equal monthly installments and (y) the
Base Salary that would have been payable for the balance of the Term,
payable in equal monthly installments; and (ii) any accrued and unpaid
bonuses due Employee in accordance with the Company's incentive
program then in effect.
(b) 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 sixty (60) days during any calendar year in the
Term. This Agreement may thereafter be terminated by the Company and
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.
(c) EMPLOYEE'S RIGHT TO TERMINATE. Employee may, at any time during the
Term, resign and shall be entitled to all accrued rights with respect
to compensation and benefits in accordance with the Company's Policies
then in effect.
(d) ARBITRATION IN THE EVENT OF A DISPUTE REGARDING THE NATURE OF
TERMINATION. In the event that the Company terminates Employees'
employment for Cause (as defined above), and Employee contends that
Cause did not exist, the Company's only obligation shall be to submit
such claim to arbitration before the American Arbitration Association
("AAA"). In such a proceeding, the only issue before the arbitrator
will be whether Employee was in fact terminated for Cause. If the
arbitrator determines that Employee was not terminated for Cause, the
only remedy that the arbitrator may award is an amount equal to the
severance payment specified in PARAGRAPH 5(a), the costs of
arbitration, and Employee's attorneys' fees. If the arbitrator finds
that the Employee was terminated for Cause, the arbitrator will be
without authority to award Employee anything, and the parties will
each be responsible for their own attorneys' fees, and they will
divide the costs of arbitration equally.
6. EMPLOYER'S AUTHORITY. Employee agrees to observe and comply with the rules
and regulations of the Company as adopted by the Management Group of the
Company or by the 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, the Company shall reimburse Employee for all
reasonable business expenses which are approved in advance and 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. NON-DISCLOSURE AGREEMENT/NON-COMPETITION.
(a) Employee will execute the Nondisclosure Agreement of the Company
attached as EXHIBIT B hereto and made a part hereof. Said agreement
shall survive termination of Employee's 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, or not renewed, by the
Company for Cause or (y) Employee voluntarily terminates his
employment relationship hereunder with the Company or Employee
elects not to renew his employment with the Company following the
expiration of this Agreement, for a period of twelve (12) 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 directly competitive with the
wireless cable television, cable television, subscription
television, direct broadcast satellite, direct-to-home, wired video
programming, non-wired video programming, wireless Internet access,
wireless fixed telephony or other fixed wireless information
businesses (the "Related Business") being carried on by the Company
or any Affiliate in any market serviced by the Company or any
Affiliate, at the time of Employee's termination, (B) be employed
by or provide consulting services to or be an investor, limited
partner or shareholder in, any entity or other person in any
Related Business within 25 miles of any city in which the Company
or any Affiliate does business at time of execution of this
Agreement or has rights to broadcast or transmit television
programming or in which the Company has a transmission license at
the time of Employee's termination, without the prior written
consent of the 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 invalid
restriction shall be amended and reformed to the extent necessary
to make same 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 8(b)
shall survive the termination of this Agreement and shall not apply
to investments constituting not more than 5% of the common equity
of a publicly traded company.
9. INDEMNIFICATION. As a material inducement for Employee to enter into this
Agreement, the Company hereby covenants and agrees to indemnify Employee to
the fullest extent permitted under applicable law with respect to any and
all damages, expenses (including reasonable attorney's fees), and other
liability suffered as a result of any and all claims, causes of action,
proceedings or other actions which may be asserted against Employee in
connection with Employee's service as an employee of the Company or any of
its Affiliates.
10. 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 Employee at the address
indicated below (or such other address as may be provided by notice).
11. MISCELLANEOUS. This Agreement, together with all schedules, exhibits and
collateral documents referenced herein, (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 and shall be binding upon, and inure to the benefit
of, the Company's successors and assigns. Headings herein are for
convenience of reference only and shall not define, limit or interpret the
contents hereof.
12. 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.
13. SPECIFIC PERFORMANCE. The parties acknowledge that the Company would be
irreparably damaged and there would be no adequate remedy at law for
Employee's breach of PARAGRAPH 8 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 or ex parte
injunction, in addition to any other remedies available at law or in
equity, to enforce the provisions hereof.
14. AFFILIATES. As used herein, the term "Affiliate" shall mean any individual
or entity controlling, controlled by or under common control with the
Company, now or in the future, including without limitation, partnerships
in which the Company or any Affiliate may invest as a limited or general
partner and limited liability companies in which the Company or any
Affiliate may become a member.
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 constructed and regulated in all
respects under the laws of the State of Delaware; provided, however, venue
for any action under this Agreement shall lie with a court of competent
jurisdiction in the State of Texas.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement is entered into as of the date and year first
above written.
CS WIRELESS SYSTEMS, INC.
By: /s/ Jared E. Abbruzzese
--------------------------
Jared E. Abbruzzese
Chairman
EMPLOYEE:
By: /s/ Jeffrey A. Kupp
--------------------------
Jeffrey A. Kupp
SCHEDULE A
Employee's Title: Senior Vice President & Chief Financial Officer
Employee's Base Salary: $120,000
Stock Options: 32,000
16,000
Vacation: 4 weeks
Term: The term of this Agreement shall be for a period
beginning on the date hereof and continuing until the
thirty-six month anniversary of this Agreement, and
shall be automatically renewed annually thereafter
unless either party gives notice to the other of its
intention not to renew this Agreement not less than
sixty (60) days prior to the expiration of the term or
unless this Agreement shall be terminated prior thereto
pursuant to PARAGRAPH 5 of this Agreement.
Automobile: During the Term, Employee shall be entitled to a
automobile allowance of $600.00 per month, payable
monthly in arrears.
Life Insurance: Subject to Employee submitting to any required physical
examinations and provided such policy can be obtained
at customary premiums, the Company shall purchase, at
its sole cost and expense, a term insurance policy with
the face amount of two (2) times Employee's Base Salary
on the life of Employee and shall permit Employee to
designate the beneficiary thereof.
Representation: The Company represents to Employee that, to the best of
its knowledge as of the date hereof, it is unaware of
any grounds or potential causes of action arising out
of the Company's past accounting practices and
procedures, any securities offerings by the Company or
its Affiliates, or any other transactions that may
expose Employee, as an officer of the Company, to
potential liability. Furthermore, the Company
covenants it will promptly notify Employee should it
become aware of any such potential causes of action.
Exhibit A
CS WIRELESS SYSTEMS, INC.
NO. 015
NON-QUALIFIED STOCK OPTION
THIS AGREEMENT, IS MADE AS OF THE GRANT DATE INDICATED IN SCHEDULE A
ATTACHED, AND BETWEEN CS WIRELESS SYSTEMS, INC. (THE "COMPANY"), AND THE
UNDERSIGNED INDIVIDUAL (THE "OPTIONEE"), PURSUANT TO THE 1996 CS WIRELESS
SYSTEMS, INC. INCENTIVE STOCK PLAN AS AMENDED (THE "PLAN"). (TERMS NOT DEFINED
HEREIN SHALL HAVE THE SAME MEANING AS IN THE PLAN.)
WHEREAS, THE OPTIONEE IS AN ELIGIBLE EMPLOYEE OF THE COMPANY AND THE
COMPANY THROUGH THE PLAN'S COMMITTEE HAS APPROVED THE GRANT OF NON-QUALIFIED
STOCK OPTIONS ("OPTIONS") UNDER THE PLAN TO THE OPTIONEE.
NOW, THEREFORE, IN CONSIDERATION OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND PURSUANT TO THE PLAN, THE PARTIES AGREE AS FOLLOWS:
1. GRANT OF OPTIONS. THE COMPANY HEREBY GRANTS TO THE OPTIONEE THE RIGHT
AND OPTION TO PURCHASE FROM THE COMPANY, AT THE EXERCISE PRICE SET
FORTH IN SCHEDULE A, ALL OR ANY PART OF THE AGGREGATE NUMBER OF COMMON
SHARES OF THE COMPANY, AS SUCH COMMON SHARES ARE PRESENTLY CONSTITUTED
(THE "COMMON SHARES"), SET FORTH IN SCHEDULE A.
2. TERMS AND CONDITIONS. IT IS UNDERSTOOD AND AGREED THAT THE OPTION
EVIDENCED HEREBY IS SUBJECT TO THE PROVISIONS OF THE PLAN (WHICH ARE
INCORPORATED HEREIN BY REFERENCE) AND THE FOLLOWING TERMS AND
CONDITIONS:
A. EXPIRATION DATE: THE OPTION EVIDENCED HEREBY SHALL EXPIRE ON THE
DATE SPECIFIED IN SCHEDULE A. EXCEPT FOR UNVESTED OPTIONS
PURSUANT TO THE VESTING SCHEDULE BELOW, WHICH SHALL EXPIRE
IMMEDIATELY ON A TERMINATION OF EMPLOYMENT, THE OPTION SHALL NOT
EXPIRE AT AN EARLIER DATE UPON TERMINATION OF OPTIONEE'S
EMPLOYMENT, UNLESS SUCH TERMINATION IS FOR CAUSE, AS DEFINED IN
THE PLAN.
B. EXERCISE OF OPTION. THE OPTION EVIDENCED HEREBY SHALL BE
EXERCISABLE FROM TIME TO TIME BY SUBMITTING THE APPROPRIATE
NOTICE OF EXERCISE FORM REFERRED TO BELOW TEN DAYS PRIOR TO THE
DATE OF EXERCISE SPECIFYING THE NUMBER OF SHARES FOR WHICH THE
OPTION IS BEING EXERCISED, ADDRESSED AS FOLLOWS:
CS WIRELESS SYSTEMS, INC.
200 CHISHOLM PLACE, SUITE 200
PLANO, TEXAS 75075
ATTENTION: CHIEF FINANCIAL OFFICER
(1) CASH ONLY EXERCISE -- SUBMITTING A "NOTICE OF CASH EXERCISE"
ACCOMPANIED BY THE FULL CASH PURCHASE PRICE OF THE EXERCISED
SHARES; OR
(2) CASHLESS EXERCISE -- PROVIDED THE COMPANY HAS ADOPTED SUCH A
PROCEDURE AT THIS TIME, SUBMITTING AN "IRREVOCABLE LETTER OF
INSTRUCTION" AND "CASHLESS EXERCISE AND SALE FORM"
AUTHORIZING THE DELIVERY FOR SALE OF THE EXERCISED COMMON
SHARES, OR
(3) COMBINATION -- TENDERING A COMBINATION OF (1) AND (2) ABOVE.
WITHHOLDING TAXES. WITHOUT REGARD TO THE METHOD OF EXERCISE AND
PAYMENT, THE OPTIONEE SHALL PAY TO THE COMPANY, UPON NOTICE OF
THE AMOUNT DUE, ANY WITHHOLDING TAXES PAYABLE WITH RESPECT TO
SUCH EXERCISE.
VESTING SCHEDULE. THE OPTIONS WILL BECOME VESTED AND EXERCISABLE
AS SET FORTH ON SCHEDULE A HERETO OR, IF NOT SPECIFICALLY SET
FORTH THEREIN, ON THE YEARLY ANNIVERSARY OF THIS AGREEMENT, IN
EQUAL ANNUAL INSTALLMENTS OVER FOUR YEARS. NOTWITHSTANDING THE
FOREGOING THRESHOLD REQUIREMENTS, THE OPTIONS SHALL BECOME VESTED
AND EXERCISABLE IN FULL EARLIER UPON THE HAPPENING OF AN
"ACCELERATION EVENT", AS DEFINED IN EXHIBIT A.
C. COMPLIANCE WITH LAWS AND REGULATIONS. THE OPTION EVIDENCED
HEREBY IS SUBJECT TO RESTRICTIONS IMPOSED AT ANY TIME ON THE
EXERCISE OR DELIVERY OF SHARES IN VIOLATION OF THE BYLAWS OF THE
COMPANY OR OF ANY LAW OR GOVERNMENTAL REGULATION THAT THE COMPANY
MAY FIND TO BE VALID AND APPLICABLE.
D. INTERPRETATION. OPTIONEE HEREBY ACKNOWLEDGES THAT THIS AGREEMENT
IS GOVERNED BY THE PLAN, A COPY OF WHICH OPTIONEE HEREBY
ACKNOWLEDGES HAVING RECEIVED, AND BY SUCH ADMINISTRATIVE RULES
AND REGULATIONS RELATIVE TO THE PLAN AND NOT INCONSISTENT
THEREWITH AS MAY BE ADOPTED AND AMENDED FROM TIME BY THE
COMMITTEE (THE "RULES"). OPTIONEE AGREES TO BE BOUND BY THE
TERMS AND PROVISIONS OF THE PLAN AND THE RULES.
E. TRANSFER RESTRICTIONS. IN ADDITION TO THE RESTRICTIONS ON
TRANSFERABILITY IMPOSED BY THE PLAN AND THE INCENTIVE PLAN, THIS
OPTION IS NOT TRANSFERABLE OTHER THAN BY WILL OR THE LAWS OF
DESCENT AND DISTRIBUTION.
IN WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS INSTRUMENT TO BE EXECUTED
BY ITS AUTHORIZED OFFICER, AS OF THE GRANT DATE IDENTIFIED IN SCHEDULE A.
AGREED TO: CS WIRELESS SYSTEMS, INC.
/S/ JEFFREY A. KUPP BY: /S/ JARED E. ABBRUZZESE
- ------------------- -----------------------
OPTIONEE: JEFFREY A. KUPP JARED E. ABBRUZZESE
CHAIRMAN
SCHEDULE A
OPTION DATA
OPTIONEE'S NAME: JEFFREY A. KUPP
NUMBER OF COMMON SHARES
SUBJECT TO THIS OPTION: 32,000
GRANT DATE: JANUARY 6, 1997
EXERCISE PRICE PER SHARE: $6.50
EXPIRATION DATE: JANUARY 6, 2007
VESTING PROVISIONS: NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THE PLAN OR THIS AGREEMENT,
INCLUDING SECTION 2 OF THIS AGREEMENT,
IF OPTIONEE'S EMPLOYMENT IS TERMINATED
FOR ANY REASON OTHER THAN FOR CAUSE (AS
DEFINED BY OPTIONEE'S EMPLOYMENT
AGREEMENT WITH THE COMPANY), THEN ALL
OPTIONS SHALL BECOME IMMEDIATELY VESTED
AND OPTIONEE SHALL HAVE THOSE RIGHTS
WITH RESPECT TO THE OPTIONS AS PROVIDED
IN THIS AGREEMENT WITHOUT REGARD TO SUCH
TERMINATION.
EXHIBIT A
For purposes of this Agreement, an Acceleration Event shall be deemed to
have occurred if after the date of the closing of the initial public offering by
the Company (i) a report on Schedule 13D shall be filed with the Securities and
Exchange Commission pursuant to Section 13(d) of the Securities Exchange Act of
1934, as amended (the "Act"), disclosing that any person other than the Company
or any employee benefit plan sponsored by the Company, is the beneficial owner
(as the term is defined in Rule 13d-3 under the Act) directly or indirectly, of
thirty-five percent or more of the total voting power represented by the
Company's then outstanding Voting Securities (calculated as provided in
paragraph (d) of Rule 13d-3 under the Act in the case of rights to acquire
Voting Securities); or (ii) any person, other than the Company or any employee
benefit plan sponsored by the Company, shall purchase shares pursuant to a
tender offer or exchange offer to acquire any voting Securities of the Company
(or securities convertible into such Voting Securities) for cash, securities or
any other consideration, provided that after consummation of the offer, the
person in question is the beneficial owner directly of indirectly, of thirty-
five percent or more of the total voting power represented by the Company's then
outstanding Voting Securities (all as calculated under clause (i)); or (iii) the
stockholders of the Company shall approve (A) any consolidation or merger of the
Company in which the Company is not the continuing or surviving corporation
(other than a merger of the Company in which holders of Common Shares of the
Company immediately prior to the merger have the same proportionate ownership of
Common Shares of the surviving corporation immediately after the merger as
immediately before), or pursuant to which Common Shares of the Company would be
converted into cash, securities or other property, or (B) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) or all or substantially all the assets of the Company; or
(iv) there shall have been a change in the composition of the Board of Directors
of the Company at any time during any consecutive twenty-four month period such
that "continuing directors" cease for any reason to constitute at least a 51%
majority of the Board. For purposes of this clause, "continuing directors"
means those members of the Board who either were directors at the beginning of
such consecutive twenty-four month period or were elected by or on the
nomination or recommendation of at least a 51% majority of the then-existing
Board. So long as there has not been an Acceleration Event within the meaning
of clause (iv), the Board of Directors may adopt a 51% majority vote of the
"continuing directors" a resolution to the effect that an event described in
clauses (i) or (ii) shall not constitute an Acceleration Event.
Exhibit A
CS WIRELESS SYSTEMS, INC.
NO. 023
NON-QUALIFIED STOCK OPTION
THIS AGREEMENT, IS MADE AS OF THE GRANT DATE INDICATED IN SCHEDULE A
ATTACHED, AND BETWEEN CS WIRELESS SYSTEMS, INC. (THE "COMPANY"), AND THE
UNDERSIGNED INDIVIDUAL (THE "OPTIONEE"), PURSUANT TO THE 1996 CS WIRELESS
SYSTEMS, INC. INCENTIVE STOCK PLAN AS AMENDED (THE "PLAN"). (TERMS NOT DEFINED
HEREIN SHALL HAVE THE SAME MEANING AS IN THE PLAN.)
WHEREAS, THE OPTIONEE IS AN ELIGIBLE EMPLOYEE OF THE COMPANY AND THE
COMPANY THROUGH THE PLAN'S COMMITTEE HAS APPROVED THE GRANT OF NON-QUALIFIED
STOCK OPTIONS ("OPTIONS") UNDER THE PLAN TO THE OPTIONEE.
NOW, THEREFORE, IN CONSIDERATION OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND PURSUANT TO THE PLAN, THE PARTIES AGREE AS FOLLOWS:
1. GRANT OF OPTIONS. THE COMPANY HEREBY GRANTS TO THE OPTIONEE THE RIGHT
AND OPTION TO PURCHASE FROM THE COMPANY, AT THE EXERCISE PRICE SET
FORTH IN SCHEDULE A, ALL OR ANY PART OF THE AGGREGATE NUMBER OF COMMON
SHARES OF THE COMPANY, AS SUCH COMMON SHARES ARE PRESENTLY CONSTITUTED
(THE "COMMON SHARES"), SET FORTH IN SCHEDULE A.
2. TERMS AND CONDITIONS. IT IS UNDERSTOOD AND AGREED THAT THE OPTION
EVIDENCED HEREBY IS SUBJECT TO THE PROVISIONS OF THE PLAN (WHICH ARE
INCORPORATED HEREIN BY REFERENCE) AND THE FOLLOWING TERMS AND
CONDITIONS:
A. EXPIRATION DATE: THE OPTION EVIDENCED HEREBY SHALL EXPIRE ON THE
DATE SPECIFIED IN SCHEDULE A. EXCEPT FOR UNVESTED OPTIONS
PURSUANT TO THE VESTING SCHEDULE BELOW, WHICH SHALL EXPIRE
IMMEDIATELY ON A TERMINATION OF EMPLOYMENT, THE OPTION SHALL NOT
EXPIRE AT AN EARLIER DATE UPON TERMINATION OF OPTIONEE'S
EMPLOYMENT, UNLESS SUCH TERMINATION IS FOR CAUSE, AS DEFINED IN
THE PLAN.
B. EXERCISE OF OPTION. THE OPTION EVIDENCED HEREBY SHALL BE
EXERCISABLE FROM TIME TO TIME BY SUBMITTING THE APPROPRIATE
NOTICE OF EXERCISE FORM REFERRED TO BELOW TEN DAYS PRIOR TO THE
DATE OF EXERCISE SPECIFYING THE NUMBER OF SHARES FOR WHICH THE
OPTION IS BEING EXERCISED, ADDRESSED AS FOLLOWS:
CS WIRELESS SYSTEMS, INC.
200 CHISHOLM PLACE, SUITE 200
PLANO, TEXAS 75075
ATTENTION: CHIEF FINANCIAL OFFICER
(1) CASH ONLY EXERCISE -- SUBMITTING A "NOTICE OF CASH EXERCISE"
ACCOMPANIED BY THE FULL CASH PURCHASE PRICE OF THE EXERCISED
SHARES; OR
(2) CASHLESS EXERCISE -- PROVIDED THE COMPANY HAS ADOPTED SUCH A
PROCEDURE AT THIS TIME, SUBMITTING AN "IRREVOCABLE LETTER OF
INSTRUCTION" AND "CASHLESS EXERCISE AND SALE FORM"
AUTHORIZING THE DELIVERY FOR SALE OF THE EXERCISED COMMON
SHARES, OR
(3) COMBINATION -- TENDERING A COMBINATION OF (1) AND (2) ABOVE.
WITHHOLDING TAXES. WITHOUT REGARD TO THE METHOD OF EXERCISE AND
PAYMENT, THE OPTIONEE SHALL PAY TO THE COMPANY, UPON NOTICE OF
THE AMOUNT DUE, ANY WITHHOLDING TAXES PAYABLE WITH RESPECT TO
SUCH EXERCISE.
VESTING SCHEDULE. THE OPTIONS WILL BECOME VESTED AND EXERCISABLE
AS SET FORTH ON SCHEDULE A HERETO OR, IF NOT SPECIFICALLY SET
FORTH THEREIN, ON THE YEARLY ANNIVERSARY OF THIS AGREEMENT, IN
EQUAL ANNUAL INSTALLMENTS OVER FOUR YEARS. NOTWITHSTANDING THE
FOREGOING THRESHOLD REQUIREMENTS, THE OPTIONS SHALL BECOME VESTED
AND EXERCISABLE IN FULL EARLIER UPON THE HAPPENING OF AN
"ACCELERATION EVENT", AS DEFINED IN EXHIBIT A.
C. COMPLIANCE WITH LAWS AND REGULATIONS. THE OPTION EVIDENCED
HEREBY IS SUBJECT TO RESTRICTIONS IMPOSED AT ANY TIME ON THE
EXERCISE OR DELIVERY OF SHARES IN VIOLATION OF THE BYLAWS OF THE
COMPANY OR OF ANY LAW OR GOVERNMENTAL REGULATION THAT THE COMPANY
MAY FIND TO BE VALID AND APPLICABLE.
D. INTERPRETATION. OPTIONEE HEREBY ACKNOWLEDGES THAT THIS AGREEMENT
IS GOVERNED BY THE PLAN, A COPY OF WHICH OPTIONEE HEREBY
ACKNOWLEDGES HAVING RECEIVED, AND BY SUCH ADMINISTRATIVE RULES
AND REGULATIONS RELATIVE TO THE PLAN AND NOT INCONSISTENT
THEREWITH AS MAY BE ADOPTED AND AMENDED FROM TIME BY THE
COMMITTEE (THE "RULES"). OPTIONEE AGREES TO BE BOUND BY THE
TERMS AND PROVISIONS OF THE PLAN AND THE RULES.
E. TRANSFER RESTRICTIONS. IN ADDITION TO THE RESTRICTIONS ON
TRANSFERABILITY IMPOSED BY THE PLAN AND THE INCENTIVE PLAN, THIS
OPTION IS NOT TRANSFERABLE OTHER THAN BY WILL OR THE LAWS OF
DESCENT AND DISTRIBUTION.
IN WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS INSTRUMENT TO BE EXECUTED
BY ITS AUTHORIZED OFFICER, AS OF THE GRANT DATE IDENTIFIED IN SCHEDULE A.
AGREED TO: CS WIRELESS SYSTEMS, INC.
/S/ JEFFREY A. KUPP BY: /S/ JARED E. ABBRUZZESE
- --------------------- -----------------------
OPTIONEE: JEFFREY A. KUPP JARED E. ABBRUZZESE
CHAIRMAN
SCHEDULE A
OPTION DATA
OPTIONEE'S NAME: JEFFREY A. KUPP
NUMBER OF COMMON SHARES
SUBJECT TO THIS OPTION: 16,000
GRANT DATE: APRIL 2, 1997
EXERCISE PRICE PER SHARE: $6.50
EXPIRATION DATE: APRIL 2, 2007
VESTING PROVISIONS: NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THE PLAN OR THIS AGREEMENT,
INCLUDING SECTION 2 OF THIS AGREEMENT,
IF OPTIONEE'S EMPLOYMENT IS TERMINATED
FOR ANY REASON OTHER THAN FOR CAUSE (AS
DEFINED BY OPTIONEE'S EMPLOYMENT
AGREEMENT WITH THE COMPANY), THEN ALL
OPTIONS SHALL BECOME IMMEDIATELY VESTED
AND OPTIONEE SHALL HAVE THOSE RIGHTS
WITH RESPECT TO THE OPTIONS AS PROVIDED
IN THIS AGREEMENT WITHOUT REGARD TO SUCH
TERMINATION.
EXHIBIT A
For purposes of this Agreement, an Acceleration Event shall be deemed to have
occurred if after the date of the closing of the initial public offering by the
Company (i) a report on Schedule 13D shall be filed with the Securities and
Exchange Commission pursuant to Section 13(d) of the Securities Exchange Act of
1934, as amended (the "Act"), disclosing that any person other than the Company
or any employee benefit plan sponsored by the Company, is the beneficial owner
(as the term is defined in Rule 13d-3 under the Act) directly or indirectly, of
thirty-five percent or more of the total voting power represented by the
Company's then outstanding Voting Securities (calculated as provided in
paragraph (d) of Rule 13d-3 under the Act in the case of rights to acquire
Voting Securities); or (ii) any person, other than the Company or any employee
benefit plan sponsored by the Company, shall purchase shares pursuant to a
tender offer or exchange offer to acquire any voting Securities of the Company
(or securities convertible into such Voting Securities) for cash, securities or
any other consideration, provided that after consummation of the offer, the
person in question is the beneficial owner directly of indirectly, of thirty-
five percent or more of the total voting power represented by the Company's then
outstanding Voting Securities (all as calculated under clause (i)); or (iii) the
stockholders of the Company shall approve (A) any consolidation or merger of the
Company in which the Company is not the continuing or surviving corporation
(other than a merger of the Company in which holders of Common Shares of the
Company immediately prior to the merger have the same proportionate ownership of
Common Shares of the surviving corporation immediately after the merger as
immediately before), or pursuant to which Common Shares of the Company would be
converted into cash, securities or other property, or (B) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) or all or substantially all the assets of the Company; or
(iv) there shall have been a change in the composition of the Board of Directors
of the Company at any time during any consecutive twenty-four month period such
that "continuing directors" cease for any reason to constitute at least a 51%
majority of the Board. For purposes of this clause, "continuing directors"
means those members of the Board who either were directors at the beginning of
such consecutive twenty-four month period or were elected by or on the
nomination or recommendation of at least a 51% majority of the then-existing
Board. So long as there has not been an Acceleration Event within the meaning
of clause (iv), the Board of Directors may adopt a 51% majority vote of the
"continuing directors" a resolution to the effect that an event described in
clauses (i) or (ii) shall not constitute an Acceleration Event.
Exhibit B
NONDISCLOSURE AGREEMENT
AGREEMENT made as of the 2ND day of APRIL, 1997, by and between the undersigned
individual residing at the address indicated following his signature below
(hereinafter referred to as "Employee") and CS WIRELESS SYSTEMS, INC., a
Delaware corporation, having its principal place of business at 200 Chisholm
Place, Suite 202, Plano, Texas 75075 (hereinafter referred to as "Employer").
WHEREAS, Employee is being employed by Employer in a capacity wherein Employee
will come into possession of material of a confidential, sensitive or
proprietary nature concerning the business, plans and trade secrets of Employer
and its Affiliates (as defined below) and of third parties; and
WHEREAS, the continued confidential treatment of such information is vital to
the success of Employer's business,
NOW THEREFORE, the parties agree as follows:
1. Employee acknowledges that his work as an employee of Employer will bring
him into close contact with the Confidential Information (as defined below)
of Employer and of third parties. Employee acknowledges that such
Confidential Information is reposed in him in trust.
2. Employee hereby agrees that he shall, both during and after his employment,
maintain such Confidential Information in confidence and neither disclose
to others (nor cause to be disclosed) nor use personally (nor cause to be
used) such Confidential Information without the prior written permission of
Employer unless required or compelled to do so by a court order; provided,
that in the event that Employee becomes legally required or compelled to
disclose Confidential Information, Employee will, to the extent practicable
under the circumstances, provide Employer with written notice thereof so
that Employer may seek a protective order or other appropriate remedy;
provided further, that in any such event, Employee will disclose only such
information as is legally required and will exercise reasonable efforts to
obtain confidential treatment for any Confidential Information being
disclosed. Employee will also take reasonable precautions to prevent the
inadvertent exposure of Confidential Information to unauthorized persons or
entities.
3. Employee acknowledges that he may, during his employment, add to Employer's
Confidential Information and he agrees that any such additions shall fall
within the strictures of this Agreement.
4. Employee agrees that upon any termination of his employment with Employer
or any Affiliate thereof, or upon request if sooner, he shall forthwith
return to Employer all reports, correspondence, notes, financial
statements, computer printouts and other documents and recorded material of
every nature (including all copies thereof) which may be in his possession
or under his control dealing with Confidential Information.
5. All inventions, discoveries, improvements, computer software, firmware,
programs, documentation, manuals and other works of authorship
(collectively referred to as "Intellectual Property"), whether or not
copyrightable or patentable, made, created, developed, written or conceived
by Employee during the course of Employee's employment by the Employer and
within the scope of Employee's employment will be deemed work made for
hire, whether made solely or jointly with another. All such Intellectual
Property will be the property of the Employer. Employee hereby assigns to
the Employer all right, title and interest in and to all Intellectual
Property.
6. Employee will, without charge to the Employer but at its expense, execute a
specific assignment of title to Employer and do anything else reasonably
necessary to enable the Employer to secure a patent, copyright or other
form of protection for said Intellectual Property anywhere in the world.
7. Employee acknowledges that the covenants in this Agreement have existed
since the commencement of his employment with Employer. These covenants
are expressions of his duty as an employee not to use the Confidential
Information to the detriment of Employer. In addition, Employee
acknowledges that he shall benefit from entry into this Agreement as
Employer shall be willing to continue to provide access to Confidential
Information to Employee.
8. EMPLOYEE ACKNOWLEDGES THAT EMPLOYER WOULD BE IRREPARABLY DAMAGED AND THERE
WOULD BE NO ADEQUATE REMEDY AT LAW FOR EMPLOYEES'S BREACH OF THIS
AGREEMENT, AND ACCORDINGLY, THE TERMS OF THIS AGREEMENT SHALL BE
SPECIFICALLY ENFORCED. EMPLOYEE HEREBY CONSENTS TO THE ENTRY OF ANY
TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR EX PARTE INJUNCTION, IN
ADDITION TO ANY OTHER REMEDIES AVAILABLE AT LAW OR IN EQUITY, TO ENFORCE
THE PROVISIONS HEREOF.
9. This Agreement is not an agreement of employment and nothing herein shall
be construed to obligate Employer to employ Employee for any definite
duration or upon any specific terms.
10. As used herein, "Confidential Information" shall mean all confidential
information and trade secrets of Employer or any of its Affiliates, whether
now existing or hereafter acquired or developed, including, without
limitation, financial statements, business plans,
working methods, investments, materials, processes, programs, designs,
drawings, names of and relationships with current or potential vendors
and lenders and other third parties, contractual arrangements, profit
formulas, experimental investigations, studies, current or potential
customer names and requirements, current or potential professional
associations or contacts, information submitted to Employer or its
Affiliates by third parties on a confidential basis and similar other
non-public or otherwise confidential, sensitive or proprietary
information. "Confidential Information" shall not include information
that is generally within the public domain, or has become generally
known within the wireless cable industry without breach of any
obligation of confidentiality of Employee or any third party.
11. As used herein, the term "Affiliates" shall mean any individual or entity
controlling, controlled by or under common control with the Employer, now
or in the future, including without limitation, partnerships in which
Employer or any Affiliate may invest as a limited or general partner and
limited liability companies in which Employer or any Affiliate may become a
member.
12. This Agreement shall survive the termination of the employment of Employee
and shall not be amended except by a writing signed by the parties hereto.
This Agreement shall be binding upon the Employee and his heirs, legal
representatives, successors and assigns.
13. This Agreement shall be governed and construed in accordance with the laws
of the State of Delaware.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
CS WIRELESS SYSTEMS, INC.
By: /s/ Jared E. Abbruzzese
------------------------
Jared E. Abbruzzese
Chairman
EMPLOYEE:
/s/ Jeffrey A. Kupp
-------------------
Jeffrey A. Kupp