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 18 Corporate Woods
Boulevard, Third Floor, Albany, New York 12211 (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 one
times Employee's Base Salary 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.
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
acting through its Chairman and delegated officers. 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 a period beginning on the Consummation Date
and continuing until the first anniversary of 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 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 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 Employees 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 Employee's 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 principal place of business to a place that is more than
thirty-five miles from his 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
President or Chief Executive Officer or 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.
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: Derwood Edge
Title: Chief Systems Officer
Base Salary: $140,000.00
Car Allowance: $500.00
Home Address: 1617 Dey Cove Drive
Virginia Beach, Virginia 23454
IN WITNESS WHEREOF, this Agreement is entered into as of the date
and year first above written.
CAI WIRELESS SYSTEMS, INC. EMPLOYEE:
By:_____________________________ _______________________
Name: James P. Ashman Name: Derwood Edge
Title: Executive Vice President
and Chief Financial Officer