AMENDMENT TO EMPLOYMENT AGREEMENT
This amendment (the "Amendment") to Employment Agreement is entered into as
of the 22nd day of April, 1998, by and between the undersigned employee
(hereinafter referred to as "Employee") residing at the address indicated
following the Employee's signature below and CS Wireless Systems, Inc., a
Delaware corporation having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Company").
WHEREAS, Employee executed an Employment Agreement ("Agreement") dated as
of April 2, 1997, which Agreement was amended pursuant to the Amendment to
Employment Contract effective as of September 4, 1997; and
WHEREAS, the Company has determined that it is in the best interests of the
Company to amend certain terms and conditions of the Agreement subject to
satisfaction of the conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and mutual
promises set forth below, the Company and the Employee hereby agree as follows:
1. EARLY TERMINATION. Paragraph 5.(a) of the Agreement is hereby amended
to delete the final sentence in its entirety and add the following at the end of
Paragraph 5.(a):
Upon the Company's termination of Employee for any reason other than Cause
or Employee's termination of this Agreement pursuant to Paragraph 5.(e),
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.
Additionally, the Company shall maintain for a period of time equal to the
balance of the Term otherwise remaining absent early termination
(regardless of cause, if any) in full force and effect, for the continued
benefit of Employee and his all employee welfare benefit plans and programs
in which Employee is entitled to participate immediately prior to the date
of termination or expiration of this Agreement, provided that Employee's
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continued participation is possible under the general terms and provisions
of such plans and programs. In the event that the Employee's participation
in any such plan or program is barred, the Company shall arrange to provide
Employee and his dependents with benefits substantially similar to those
which Employee and his dependents would otherwise have entitled to receive
under such plans and programs from which their continued participation is
barred.
Notwithstanding anything herein to the contrary, the occurrence of any of
the following within a period of twelve (12) months before or after a
"Change of Control", as defined hereinafter, shall constitute termination
of Employee without cause: (i) a termination of employment, (ii) a change
in office, title, or position from that reasonably associated with
Employee's present position, other than a promotion, (iii) a change of
reporting by Employee to any person other than the Board of Directors or
the Management Group, (iv) a required relocation to a location in excess of
thirty (30) miles away from the Company's present principal location, (v) a
reduced salary, or (vi) a material diminution in responsibilities.
2. EARLY TERMINATION BY EMPLOYEE. Paragraph 5 of the Agreement is hereby
amended to add new Paragraph 5.(e) as follows:
(e) CHANGE IN CONTROL. Employee may terminate his employment hereunder at
any time within one (1) year following any "Change in Control". Upon such
termination, Employee shall receive all Severance Amounts and benefits
payable pursuant to Paragraph 5.(a). For the purpose of this Agreement, a
"change in control" shall be deemed to have occurred on the date (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 (35%) 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
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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 or indirectly, of thirty-five percent
(35%) 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 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 series of related transactions) of
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 (24) month period
such that "continuing directors" cease for any reason to constitute at
least fifty-one percent (51%) majority of the Board. For the purposes
of this clause, "continuing directors" means those members of the Board
who either were directors at the beginning of such consecutive
twenty-four (24) month period or were elected by or on the nomination or
recommendation of at least a fifty-one percent (51%) majority of the
then-existing Board. So long as there has not been a "change of
control" within the meaning of clause (iv), the Board of Directors may
adopt a fifty-one percent (51%) majority vote of the "continuing
directors" a resolution to the effect that an event described in clauses
(i) or (ii) shall not constitute a "change of control."
3. STOCK OPTIONS. Paragraph 5 of the Agreement is hereby amended to
add the following Paragraph 5(f) to the Agreement:
(f) STOCK OPTIONS. For a period of one year following the expiration of
the Term, calculated without giving effect to any early termination,
Employee shall have the right at any time to exercise all stock options
previously granted to Employee.
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4. RELOCATION. The Agreement is hereby amended to add the
following:
17. RELOCATION. In the event that Employee consents to relocate his
residence in conjunction with a relocation of the Employer's principal
office, the Company shall pay for all of Employee's expenses in
connection with such relocation including, without limitation,
temporary residence pending relocation, moving expenses, and real
estate costs, commissions, fees and appraisals.
Executed to be effective the date set forth above.
CS WIRELESS SYSTEMS, INC.
BY: /s/ ▇▇▇▇▇ ▇. Abbuzzese
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NAME: ▇▇▇▇▇ ▇. Abbuzzese
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TITLE: Chairman
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
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