Exhibit 10.46


 


AMENDED AND RESTATED SEVERANCE AND

CHANGE OF CONTROL
AGREEMENT


 


This Amended and Restated
Severance and Change of Control Agreement (“Agreement”) is effective as
of March 28, 2006, between Wireless Facilities, Inc. (“WFI”) and
James Edwards (“Edwards”), as approved by WFI’s Board Compensation
Committee.


 


A.                                   Edwards is presently employed as Senior Vice
President, General Counsel pursuant to an offer letter dated March 29,
2004 (the “Offer Letter”).


 


B.                                     On March 28, 2005, WFI and Edwards
entered into a Change of Control Agreement (the “Original Agreement”),
which memorialized in writing their understanding regarding the vesting of
stock options and stock appreciation rights granted to Edwards under WFI’s
equity incentive plans in the event of a Change of Control.


 


C.                                     As consideration for Edwards’ agreement to
undertake and continue his duties and responsibilities in his role as Senior
Vice President, General Counsel in light of the changed circumstances at the
Company since the date of the Original Agreement, WFI and Edwards desire to
enter into this Agreement to (i) amend and restate paragraph 2 of the Original
Agreement to provide for the payment of severance compensation to Edwards upon
a termination without Cause, (ii) revise the definition of Cause in paragraph
3(c) of the Original Agreement, and (iii) add a new paragraph 6 to address
compliance with Section 409A of the Internal Revenue Code of 1986 (the “Code”).


 


Therefore, in consideration
of the promises and the mutual covenants contained below, and for other good
and valuable consideration, receipt of which is hereby acknowledged, the
parties agree as follows:


 


1.                                       Vesting Upon Change of
Control. Upon the closing of
a transaction that constitutes a Change of Control (as defined in
paragraph 3(a) below), the vesting of 50% of all stock options and stock
appreciation rights granted to Edwards under WFI’s equity incentive plans that
as of the date of such Change of Control remain unvested shall accelerate, to
the extent permissible by law, notwithstanding and in addition to any existing
vesting provisions set forth in such stock option, stock appreciation right
and/or WFI equity incentive plan. On the one year anniversary of such Change of
Control or upon a Triggering Event (as defined in paragraph 3(b) below),
whichever occurs sooner, the remaining unvested portion of any stock options
and stock appreciation rights shall immediately vest.


 


2.                                       Severance Payments. If Edwards is (a) terminated without Cause
(as defined in paragraph 3(c) below) or (b) voluntarily resigns from WFI
as a result of a Triggering Event (as defined in paragraph 3(b) below)
after a Change of Control (as defined in paragraph 3(a) below), then
Edwards will be entitled to receive in satisfaction of all obligations (other
than as provided in paragraph 1 above) that WFI may have to Edwards: (i)
in the case of 2(a) hereof, severance compensation equal to one year of his
base salary then in effect; or in the case of 2 (b) hereof, severance
compensation equal to two years of his base salary plus his maximum potential
bonus amount for two years; in either case, less applicable taxes and
withholding; and, if needed by Edwards, (ii) his then-current health insurance
coverage, at the then current employee cost, during the twelve (12) month
period following a termination in the case of 2 (a); or during the twenty-four
(24) month period following a resignation in the case of 2(b). In addition, in
the event that Edwards is terminated without Cause, the vesting of 100% of all
stock options and stock appreciation rights granted to Edwards under WFI’s
equity incentive plans that as of the date of such termination remain unvested
shall accelerate, to the extent permissible by law,


 


2

















 


notwithstanding and in
addition to any existing vesting provisions set forth in such stock option,
stock appreciation right and/or WFI equity incentive plan. The foregoing
severance compensation, health insurance coverage and acceleration of vesting
will be conditioned upon Edwards’ execution of a separation agreement with a
release of claims reasonably satisfactory to WFI and such severance
compensation shall be paid in a single lump sum payment promptly after Edwards’
execution of such separation agreement.


 


3.                                       Definition of Change of
Control and Triggering Event.


 


(a)                                  A Change of Control means: (i) the
acquisition by an individual person or entity or a group of individuals or
entities acting in concert, directly or indirectly, through one transaction or
a series of transactions, of more than 50% of the outstanding voting securities
of WFI; (ii) a merger or consolidation of WFI with or into another entity
after which the stockholders of WFI immediately prior to such transaction hold
less than 50% of the voting securities of the surviving entity; (iii) any
action or event that results in the Board of Directors consisting of fewer than
a majority of Incumbent Directors (“Incumbent Directors” shall mean
directors who either (A) are directors of WFI as of the date hereof, or
(B) are elected or nominated for election, to the Board with the
affirmative votes of at least a majority of the Incumbent Directors at the time
of such election or nomination); or (iv) a sale of all or substantially
all of the assets of WFI.


 


(b)                                 A Triggering Event means (i) Edwards’
termination from employment; (ii) a material change in the nature of
Edwards’ role or job responsibilities so that Edwards’ job duties and
responsibilities after the Change of Control, when considered in their totality
as a whole, are substantially different in nature from the job duties Edwards
performed immediately prior to the Change of Control; or (iii) the
relocation of Edwards’ principal place of work to a location of more that
thirty (30) miles from the location Edwards was assigned to immediately
prior to the Change of Control.


 


(c)                                  “Cause” means (i) acts or omissions
constituting gross negligence, recklessness or willful misconduct on the part
of Edwards with respect to Edwards’ obligations or otherwise relating to the
business of WFI; (ii) Edwards’ material breach of this Agreement or WFI’s
standard form of confidentiality agreement; (iii) Edwards’ conviction or
entry of a plea of nolo contendere
for fraud, misappropriation or embezzlement, or any felony or crime of moral
turpitude; (iv) Edwards’ failure to perform his duties and responsibilities as
Senior Vice President, General Counsel to the reasonable satisfaction of the
Board after being provided with notice thereof and thirty (30) days opportunity
to remedy such failure; and (v) Edwards’ willful neglect of duties or poor
performance. Notwithstanding the foregoing, a termination under
subsection (v) shall not constitute a termination for “Cause” unless WFI
has first given Edwards written notice of the offending conduct (such notice
shall include a description of remedial actions that WFI reasonably deems
appropriate to cure such offending conduct) and a thirty (30) day
opportunity to cure such offending conduct. In the event WFI terminates
Edwards’ employment under subsection (v), WFI agrees to participate in
binding arbitration, if requested by Edwards, to determine whether the cause
for termination was willful neglect of duties or poor performance as opposed to
some other reason that does not constitute Cause under this Agreement.


 


4.                                       General Provisions. Except as set forth in this Agreement, the
terms of the Offer Letter remain unchanged. Nothing in this Agreement is
intended to change the at-will nature of Edwards’ employment with WFI. This
Agreement and the Offer Letter, including the Additional Terms and Conditions
attached thereto and the Proprietary Information and Innovations Agreement
signed by Edwards, constitute the entire agreement between Edwards and WFI with


 

















 


respect to Edwards’
employment with WFI, and supersedes and replaces the Original Agreement in its
entirety. No amendment or modification of the terms or conditions of this
Agreement shall be valid unless in writing and signed by the parties.


 


5.                                       Compliance with Section
409A of the Code. This Agreement
is intended to comply with Section 409A of the Code (or any regulations or
rulings thereunder), and shall be construed and interpreted in accordance with
such intent. Notwithstanding anything to the contrary in this Agreement, WFI,
in the exercise of its sole discretion and without the consent of Edwards,
(a) may amend or modify this Agreement in any manner in order to meet the
requirements of Section 409A of the Code as amplified by any Internal Revenue
Service or U.S. Treasury Department guidance and (b) shall have the
authority to delay the payment of any amounts or the provision of any benefits
under this Agreement to the extent it deems necessary or appropriate to comply
with Section 409A(a)(2)(B)(i) of the Code (relating to payments made to
certain “key employees” of certain publicly-traded companies) as amplified by
any Internal Revenue Service or U.S. Treasury Department guidance as WFI deems
appropriate or advisable. In such event, any amounts or benefits under this
Agreement to which Edwards would otherwise be entitled during the six (6) month
period following Edwards’ termination of employment will be paid on the first
business day following the expiration of such six (6) month period. Any
provision of this Agreement that would cause the payment of any benefit to fail
to satisfy Section 409A of the Code shall have no force and effect until
amended to comply with Code Section 409A (which amendment may be retroactive to
the extent permitted by the Code or any regulations or rulings thereunder).


 


 


	
   

  	
  James R.
  Edwards

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:    March
  28, 2006

  	
  /s/ James R. Edwards

  	
   

  
	
   

  	
   

  
	
   

  	
  Wireless
  Facilities, Inc.

  
	
   

  	
   

  
	
  Dated:    March
  28, 2006

  	
  By:

  	
  /s/ Eric DeMarco

  	
   

  
	
   

  	
   

  	
  Eric DeMarco, Chief
  Executive Officer