EXHIBIT 99.6
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") made as of the 28th day of
February, 1997 by and between XXXXX X. XXXXXX, residing at the address
indicated following his signature below (hereinafter referred to as
"Employee") and CAI WIRELESS SYSTEMS, INC., a Connecticut corporation
having its principal place of business at 00 Xxxxxxxxx Xxxxx Xxxxxxxxx,
Xxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000 (hereinafter referred to as the
"Company").
. EMPLOYMENT. The Company hereby employs Employee and Employee
agrees to work for the Company as Executive Vice President and Chief
Financial Officer during the Term (as defined below) of and upon the
terms and conditions set forth in this Agreement.
. COMPENSATION/BENEFITS. () BASE SALARY. During the Term of
this Agreement, the Company agrees to pay Employee a base annual salary
of $183,000 ("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 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.
() 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 calendar year in
consultation with the Employee. The bonus may be structured as a part of
a deferred compensation arrangement.
() INCENTIVE COMPENSATION. During the Term of this
Agreement, Employee shall be entitled to participate in any pooled
incentive programs established by the Company for senior executive
employees.
() 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 senior 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.
() 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
senior executive benefit policies or plans on the life of Employee and
shall permit Employee to designate the beneficiary thereof.
. SERVICES. Employee agrees to devote 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. Employee shall not, without the prior
written consent of the Company, directly or indirectly, during the term
of this Agreement, render services, for compensation or otherwise, to or
for any other person or firm; provided that 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.
. TERM. The term of this Agreement (the "Term" or the "Term of
this Agreement") shall be for a period beginning on the date hereof (the
"Commencement Date") and continuing until the second anniversary of the
Commencement 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.
. EARLY TERMINATION. () 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 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 (death of the Employee or any such
finding is referred to herein as "Cause"), provided, however, that after
an event described in Annex A hereto only events under (i) and (ii)(a) of
this Paragraph 5 shall constitute "Cause". Upon any termination of
Employee's employment, the Term of this Agreement shall expire. In the
event of Employee's termination other than for Cause, Employee shall be
entitled to severance in an amount equal to his then Base Salary under
Paragraph 2, payable in twelve equal monthly installments (the "Severance
Amount").
() PAYMENTS UPON TERMINATION. Upon termination of this
Agreement for any reason other than for Cause, 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. Unused vacation shall be treated in
accordance with the policy set forth in the Employee Manual of the
Company.
() 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 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.
. 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 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.
. 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.
. AUTOMOBILE ALLOWANCE. During the Term of this Agreement,
Employee shall be entitled to an automobile allowance of $650.00 per
month, payable monthly in arrears.
. NON-DISCLOSURE NON-COMPETITION. () Employee will execute the
Nondisclosure Agreement of the Company, a copy of which is attached as
Annex B hereto and made a part hereof. Said agreement shall survive
termination of employment hereunder.
() 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 in a capacity that is directly competitive with the wireless
cable television, cable television, subscription television, direct
broadcast satellite, direct-to-home, wireless Internet access, wired
video programming or non-wired video programming businesses (each a
"Related Business") being carried on by the Company or any Affiliate
thereof, in any market serviced by the Company or any Affiliate thereof,
or in any market in which the Company or any Affiliate thereof at the
time of Employee's termination of employment, or in any "Service Area" as
defined in the Business Relationship Agreement between the Company and
Xxxx Atlantic Corporation ("BAC") and NYNEX Corporation ("NYNEX") as
amended and in effect on the date of termination of Employee's employment
(the "BR Agreement"), in which the Company or any Affiliate thereof
provides, or could be required to provide, pursuant to the terms of the
BR Agreement, any transport services for BAC, NYNEX or any Affiliate
thereof (BAC, NYNEX and Affiliates of each are collectively referred to
as "BANX"), 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, is providing or could become obligated to provide, transport
services for BANX or has rights to broadcast or transmit television
programming or in which the Company or any Affiliate thereof, has a
transmission license at the time of 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 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.
. 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.
. 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).
. 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
individual or entity controlling, controlled by or under common control
with the Company, BAC or NYNEX, as the case may be, or any officer or
director of the Company, BAC or NYNEX, as the case may be, now or in the
future, including without limitation, partnerships in which the Company,
BAC or NYNEX, as the case may be, or any Affiliate acquires a controlling
interest as a limited or general partner and limited liability companies
in which the Company, BAC or NYNEX, as the case may be, or any Affiliate
becomes a member.
. 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.
. 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.
. SEVERABILITY. The provisions of this Agreement are severable.
The invalidity of any provision shall not affect the validity of any
other provision.
. 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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IN WITNESS WHEREOF, this Agreement is entered into as of the
date and year first above written.
CAI WIRELESS SYSTEMS, INC.
By /S/
Name: Xxxx Xxxxxx
Its: President and Chief
Operating Officer
EMPLOYEE:
/S/
Name: Xxxxx X. Xxxxxx
Address:
