Exhibit
10.45


 


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 Deanna Lund (“Lund”), as approved by WFI’s Board Compensation
Committee.


 


A.                                   Lund is presently employed as Chief Financial
Officer pursuant to an offer letter dated March 15, 2004 (the “Offer Letter”).


 


B.                                     On March 28, 2005, WFI and Lund 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 Lund under WFI’s equity
incentive plans in the event of a Change of Control.


 


C.                                     As consideration for Lund’s agreement to
undertake and continue her duties and responsibilities in her role as Chief
Financial Officer in light of the changed circumstances at the Company since
the date of the Original Agreement, WFI and Lund 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 Lund 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 Lund 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 Lund 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 Lund will be
entitled to receive in satisfaction of all obligations (other than as provided
in paragraph 1 above) that WFI may have to Lund: (i) in the case of 2(a)
hereof, severance compensation equal to one year of her base salary then in
effect; or in the case of 2 (b) hereof, severance compensation equal to two
years of her base salary plus her maximum potential bonus amount for two years;
in either case, less applicable taxes and withholding; and, if needed by Lund,
(ii) her 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 Lund is terminated without
Cause, the vesting of 100% of all stock options and stock appreciation rights
granted to Lund under WFI’s equity incentive plans that as of the date of such
termination 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. The foregoing severance compensation, health insurance coverage and
acceleration of vesting will be conditioned upon Lund’s 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 Lund’s 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) Lund’s
termination from employment; (ii) a material change in the nature of
Lund’s role or job responsibilities so that Lund’s 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 Lund
performed immediately prior to the Change of Control; or (iii) the
relocation of Lund’s principal place of work to a location of more that thirty
(30) miles from the location Lund 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 Lund with respect to Lund’s obligations or otherwise relating to the
business of WFI; (ii) Lund’s material breach of this Agreement or WFI’s
standard form of confidentiality agreement; (iii) Lund’s conviction or entry
of a plea of nolo contendere for
fraud, misappropriation or embezzlement, or any felony or crime of moral
turpitude; (iv) Lund’s failure to perform her duties and responsibilities as
Chief Financial Officer to the reasonable satisfaction of the Board after being
provided with notice thereof and thirty (30) days opportunity to remedy such
failure; and (v) Lund’s 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 Lund
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 Lund’s employment under
subsection (v), WFI agrees to participate in binding arbitration, if
requested by Lund, 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 Lund’s 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 Lund, constitute the entire agreement between Lund and WFI with
respect to Lund’s 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 Lund, (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 Lund would otherwise be entitled during the six
(6) month period following Lund’s 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).


 


 


	
   

  	
   

  	
  Deanna H.
  Lund

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
  March 28, 2006

  	
  /s/ Deanna H. Lund

  
	
   

  	
   

  	
  Wireless
  Facilities, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
  March
  28,2006

  	
  By:

  	
  /s/ Eric DeMarco

  
	
   

  	
   

  	
   

  	
  Eric DeMarco, Chief
  Executive Officer