EMPLOYMENT AGREEMENT
Exhibit
10.2
EMPLOYMENT
AGREEMENT (this “Agreement”), dated December 10, 2007 (the “Effective Date’), is
entered into by and between Berliner Communications, Inc. (the “Company”), a
Delaware corporation, with its principal place of business at 00 Xxxxxx Xxxx,
Xxxxxxx Xxxx, Xxx Xxxxxx 00000, and Xxxxxxxx Xxx (the “Employee”), an individual
residing at _________________________.
W
I T
N E S S E T H:
WHEREAS,
The
Company desires to secure the services and employment of the Employee on behalf
of the Company and its wholly owned subsidiary, BCI Communications, Inc. (“BCI”)
and Employee desires to be employed with the Company upon the terms and
conditions hereinafter set forth.
WHEREAS,
Employee is willing to serve as General Counsel and Secretary of the Company
and
BCI, and the Company desires to retain Employee in that capacity upon the terms
and conditions herein set forth.
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
Section
1. Term
of Employment.
The
Employee's employment under this Agreement shall commence as of the Effective
Date and, subject to earlier termination pursuant to Section 5 of this Agreement
below, shall continue until June 30, 2009 (the “Employment Term”); provided
however, that the Employment Term shall be automatically extended for an
additional year unless written notice of non-extension is provided by either
party to the other party at least 90 days prior to the expiration of the
Employment Term.
Section
2. Position
and Duties.
During
the Employment Term, the Employee shall serve as General Counsel and Secretary
of the Company and shall report to the Chief Executive Officer. Employee shall
have such powers and duties as are commensurate with such positions and as
may
be conferred upon him from time to time by Chief Executive Officer or the Board
of Directors of the Company (the “Board”). During the Employment Term, the
Employee shall use his best efforts to faithfully perform the duties of General
Counsel and Secretary and shall devote all of his business time, attention,
skill and efforts exclusively to the business and affairs of the Company, its
subsidiaries and affiliates and the Employee agrees that he shall abide by
all
applicable policies of the Company.
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Section
3. Compensation.
(a) Salary.
For the performance of Employee’s duties hereunder during the Employment Term,
Employee shall receive an annualized base salary of $225,000.00 (the “Base
Salary”) less normal deductions and withholdings. The salary payments shall be
made in accordance with the Company’s standard payroll practices. Employee’s
Base Salary shall be reviewed at least annually by the Chief Executive Officer
and the Board of Directors for consideration of appropriate merit based
increases.
(b) Incentive
Compensation. The Employee shall be entitled to participate in all compensation
and employee benefit plans or programs (“plans and programs”), subject to the
terms and conditions of the plans and programs, that are offered to all salaried
employees of the Company, including, without limitation, incentive compensation,
bonus, group hospitalization, health, dental care, or other insurance, stock
purchase, restricted stock and stock option plans. Employee shall be eligible
for a cash bonus at the end of each fiscal year pursuant to the executive
compensation program established by the Compensation Committee for such year.
For fiscal 2008, this bonus will be pro rated for the portion of the fiscal
year
Employee served with the Company. The fiscal 2008 bonus will be based on the
following factors:
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50%
will be based on the Company achieving no less than $3.5 million
in EBITDA
for the fiscal year; and
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50%
will be based upon the Employee’s personal performance, as determined by
the CEO and Compensation Committee according to criteria to be established
in consultation with Employee.
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The
Company’s expectation is that, if the above referenced EBITDA target is
achieved, and if Employee’s personal performance merits it, Employee will
receive a cash bonus of no less than thirty percent (30%) of Employee’s base
salary paid during the year.
(c) Premiums/Contributions. During
the Employment Term, the Employee shall be entitled to participate in all
medical and dental health plans and programs at no cost to the
Employee.
(d) Vacation
and Sick Leave. During the Employment Term, the Employee shall be entitled
to
vacation and sick leave in accordance with Company policies and
procedures.
(e) Car
Allowance. During the Employment Term, the Employee shall be entitled to an
annual car allowance in the amount of $6,000.00, which will be payable on a
pro-rata basis in association with the regular payroll schedule and subject
to
normal payroll deductions and withholdings.
(f) Stock
Options. Employee shall be entitled to receive stock options or other equity
awards at the discretion of the Board of Directors.
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Section
4. Business
Expenses.
The
Company shall pay or reimburse the Employee for all reasonable travel or other
out-of-pocket expenses actually incurred by the Employee in connection with
the
performance of his duties and obligations under this Agreement. The Employee
shall submit proof of such expenses in accordance with such policies and
procedures as the Company may from time to time establish for
employees.
Section
5. Effect
of Termination of Employment.
The
terms and conditions of this Agreement shall automatically terminate at the
end
of the Employment Term, or earlier, based on the following
circumstances:
(a) Without
“Cause”. Notwithstanding any provisions of this Agreement to the contrary, the
Company may terminate the Employee’s employment hereunder for any reason or for
no reason, at any time during the Employment Term, effective upon delivery
of
two (2) days notice by the Company. In the event the Employee's employment
terminates during the Employment Term, due to a Without Cause Termination (as
hereinafter defined), the Employee, in exchange for a complete release and
waiver, releasing the Company of any and all legal claims or potential legal
claims, shall receive an amount equal to his Base Salary then in effect for
twelve (12) months (the “Severance Period”) plus (i) any Base Salary already
earned and accrued under this Agreement prior to the effective date of
termination; (ii) reimbursement under this Agreement for expenses pursuant
to
Section 4 incurred prior to the effective date of termination; and (iii) all
vested benefits under the Company’s plans and programs, subject to the terms of
such plans and programs (together, the “Severance Payments”). The Severance
Payments will be made, at the Company’s option, in a lump sum or ratably over
the Severance Period, with such determination made by the Company within seven
(7) days after receipt of the executed release and waiver. The Employee agrees
and acknowledges that he shall be entitled to any and all payments (or future
payments) under this Section 5(a) so long as he is not in violation of Section
7
of this Agreement, set forth below. To the extent that the Employee is in
violation of his agreements and covenants set forth in Sections 6 and 7 he
shall
not be entitled to any payment or future payment under this Section 5(a).
(b) Termination
upon Death, Disability, or Cause. This Agreement shall terminate upon the
Employee’s death, disability or Cause (as hereinafter defined). If one of these
events shall occur, the Employee shall have no right to receive any compensation
or benefit other than (i) any Base Salary already earned and accrued under
this
Agreement prior to the effective date of termination; (ii) reimbursement under
this Agreement for expenses pursuant to Section 4 incurred prior to the
effective date of termination; and (iii) all vested benefits under the Company’s
plans and programs, subject to the terms of such plans and
programs.
(c) Voluntary
Resignation. The Employee may terminate his employment hereunder at any time
during the Employment Term subject only to the requirement that the Employee
shall provide the Company with a minimum of thirty (30) days prior written
notice. In the event of a voluntary termination (resignation) by Employee,
the
Company will have no obligation to Employee other than to pay Employee any
earned and accrued Based Salary and the value of any earned, accrued, unused
vacation. Employee hereby acknowledges and agrees that in the event of a
voluntary resignation (i) he will not be entitled to any other type of
compensation or benefits under this Agreement and (ii) that the compensation
and
benefits that he received under this Agreement prior to his voluntary
termination were good and sufficient consideration for him to have to completely
and fully abide with his covenants and agreements set forth in Section 7 below
concerning non-competition and non-soliciation.
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(d) With
“Good Reason”. Notwithstanding any provision of this Agreement to the contrary,
the Employee may terminate his employment hereunder for Good Reason (as defined
hereinafter), subject to the requirement that the Employee shall provide the
Company with a minimum of two (2) weeks prior written notice. In the event
that
the Company does not cure said Good Reason, the Employee shall be entitled
to
receive the Severance Payments in exchange for a complete release and waiver,
releasing the Company of any and all legal claims or potential legal claims.
The
Employee agrees and acknowledges that he shall be entitled to any and all
payments (or future payments) under this Section 5(d) so long as he is not
in
violation of Section 7 of this Agreement, set forth below. To the extent that
the Employee is in violation of his agreements and covenants set forth in
Sections 6 and 7 he shall not be entitled to any payment or future payment
under
this Section 5(d).
(e) If
a
Change in Control (defined below) is consummated during the Term of this
Agreement and (A) Employee is terminated immediately prior to or in connection
with such Change of Control; or (B) within six months immediately following
such
Change in Control, Employee either (i) is terminated Without Cause or (ii)
resigns for Good Reason, then the Company (or the surviving entity, as the
case
may be) shall pay Employee the Severance Payments.
(f) For
purposes of this Agreement, the following terms have the following
meanings:
(i)
The
term “Termination for Cause” means, to the maximum extent permitted by
applicable law, a termination of the Employee's employ-ment by the Company
because the Employee has (a) materially breached or materially failed to perform
his duties and such breach or failure to perform constitutes self-dealing,
willful misconduct or recklessness, (b) committed an act of dishonesty in the
performance of his duties hereunder or engaged in conduct detrimental to the
business of the Company, (c) been convicted of a felony or any crime involving
moral turpitude, (d) materially breached or materially failed to perform his
obligations and duties hereunder, which breach or failure the Employee shall
fail to remedy within 30 days after written demand from the Company, or (e)
violated in any material respect the representations made in Section above
or
the provisions of Sections 6 and 7 below.
(ii) The
term
“Without Cause Termination” means a termination of the Employee’s employment by
the Company other than due to expiration of the Employment Term and other than
a
Termination for Cause.
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(iii) The
term
“Good Reason” means, the occurrence, without the Employee’s written consent, of
any of the following: (i) a significant change in the nature or scope of the
Employee’s duties from those described in Section 2 above, including a material
demotion or any assignment of duties materially and adversely inconsistent
with
Employees position as General Counsel (except in connection with the termination
of Employee’s employment for Death, Disability or Cause); (ii) a failure by the
Company to pay to the Employee any amounts due under this Agreement or provide
any benefits in accordance with the terms hereof, which failure is not cured
within fifteen (15) days following receipt by the Company of notice from the
Employee of such failure; or (iii) a relocation of the Company’s corporate
headquarters more than sixty-five (65) miles from Employee’s current residence
as of the date hereof (iv) any other material breach by the Company of this
Agreement that remains uncured for fifteen (15) days after written notice
thereof by the Employee to the Company.
(iv) "Change
In Control" shall mean the consummation of any of the following transactions
effecting a change in ownership or control of the Company: (a) any merger,
consolidation or reorganization, unless securities representing more than fifty
percent (50%) of the total combined voting power of the voting securities of
the
successor corporation are immediately thereafter beneficially owned, directly
or
indirectly and in substantially the same proportion, by the persons who
beneficially owned the Company's outstanding voting securities immediately
prior
to such transaction; or (b) any transfer, sale or other disposition of all
or
substantially all of the Company's assets; or (c) the acquisition, directly
or
indirectly, by any person or related group of persons (other than the Company
or
a person that directly or indirectly controls, is controlled by, or is under
common control with, the Company), of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Company's outstanding securities pursuant to a tender or exchange offer
made
directly to the Company's beneficial holders; provided, however, in no event
shall a Change in Control be deemed to occur in connection with any public
offering of Common Stock, the primary purpose of which is to raise
capital.
Section
6. Other
Duties of Employee During and After Employment Term. The
Employee recognizes and acknowledges that the principle business of the Company
is providing wireless carriers with comprehensive real estate site acquisition
and zoning services, radio frequency and network design engineering,
infrastructure equipment construction and installation, radio transmission
base
station modification and project management services. The Employee further
recognizes and acknowledges that all information pertaining to the affairs,
business, clients, or customers of the Company or any of its subsidiaries or
affiliates (any or all of such affairs, business, clients, and customers
hereinafter collectively referred to as the "Business"), as such information
may
exist from time to time, other than information that the Company has previously
made publicly available, is confidential information and is a unique and
valuable asset of the Business, access to and knowledge of which are essential
to the performance of the Employee's duties under this Agreement. In
consideration of the payments and obligations made to him hereunder, the
Employee shall not at any time, except to the extent reasonably necessary in
the
performance of his duties under this Agreement, divulge to any person, firm,
association, corporation, or governmental agency, any information concerning
the
affairs, businesses, clients, or customers of the Business (except such
information as is required by law to be divulged to a government agency or
pursuant to lawful process), or make use of any such information for his own
purposes or for the benefit of any person, firm, association or corporation
(except the Business) and shall use his reasonable best efforts to prevent
the
disclosure of any such information by others. All records, memoranda, letters,
books, papers, reports, accountings, or other data, and other records and
documents relating to the Business, whether made by the Employee or otherwise
coming into his possession, are confidential information and are, shall be,
and
shall remain the property of the Business. No copies thereof shall be made
which
are not retained by the Business, and the Employee agrees, on termination of
his
employment or on demand of the Company, to deliver the same to the
Company.
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(g) In
the
event of a termination pursuant to this Section 5, the Employee will be entitled
to participate in continued group hospitalization, health and dental care
insurance in accordance with the terms and conditions of the Comprehensive
Omnibus Budget Reconciliation Act ("COBRA"), at Employee’s expense.
Section
7. Non-Competition and Non-Solicitation.
(a) (i)
The
Employee acknowledges that as a result of his employment by the Company, the
Employee (1) will acquire knowledge of the trade and proprietary and
confidential information as to the business of the Company and its Affiliates
and (2) will create relationships with customers, suppliers and other persons
dealing with the Company and its Affiliates. The Employee further acknowledges
and agrees that the Company and its Affiliates will suffer substantial damage,
which would be difficult to ascertain and is not compensable by monetary
damages, if the Employee should use such trade secrets or other proprietary
and
confidential information or take advantage of such relationship and that because
of the nature of the information that will be known to the Employee and the
relationships created, it is necessary for the Company and its Affiliates to
be
protected by the prohibition against Competition as set forth
herein.
(ii)
The
Employee acknowledges that the retention of non-clerical employees employed
by
the Company and its Affiliates in which the Company and its Affiliates have
invested training and depend on for the operation of their businesses is
important to the businesses of the Company and its Affiliates, that the Employee
will obtain unique information as to such employees and will develop unique
relationships with such persons as a result of being an employee of the Company
and, therefore, it is necessary for the Company and its Affiliates to be
protected from the Employee’s Solicitation (as defined below) of such employees
as set forth below.
(iii)
The
Employee acknowledges that the provisions of this Agreement are reasonable
and
necessary for the protection of the businesses of the Company and its Affiliates
and that part of the compensation paid under this Agreement and the agreement
to
pay compensation upon termination in certain instances is in consideration
for
the agreements and covenants in this Section 7.
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(b)
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Definitions
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(i) For
the
purposes of this Agreement, “Competition” shall mean: participating, directly or
indirectly, as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, consultant or in any
capacity whatsoever (within the United States of America, or in any country
where the Company or its Affiliates do business) in a Competing Business (as
defined below); provided, however, that such participation shall not include
(i)
the mere ownership if not more than three percent (3%) of the total outstanding
stock of a publicly help company; or (ii) any activity engaged in with the
prior
written approval of the Board of Directors of the Company.
(ii) For
the
purposes of this Agreement, “Competing Business” shall mean any line of business
engaged in by the Company and/or its subsidiaries and/for any entity in which
the Company and/or its subsidiaries holds securities (other than entities in
which the Company or its subsidiaries make a nominal investment) (i) from time
to time (while Employee is employed by the Company) or (ii) at the time of
termination (upon termination of Employee’s employment).
(iii) For
the
purposes of this Agreement, “Affiliate” of the Company shall mean any business,
entity, partnership, corporation, or subsidiary directly or indirectly
controlling, controlled by, or under common control with, the Company; provided
that, for the purposes of this definition, “control” (including with correlative
meanings, the terms “controlled by” and “under common control with”), as used
with respect to the Company, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies
of
the Company, whether through the ownership of voting securities or partnership
interests, by contract of otherwise.
(iv) For
purposes of this Agreement, “Solicitation” shall mean: recruiting, soliciting or
inducing, of any non-clerical employee of the Company or its Affiliate to
terminate their employment with, or otherwise cease their relationship with,
the
Company or its Affiliates or hiring or assisting another person or entity to
hire any non-clerical employee of the Company or its Affiliates or any person
who within twelve (12) months before had been a non-clerical employee of the
Company or its Affiliates and were recruited or solicited for such employment
or
other retention while an employee of the Company, provided, however, that
Solicitation shall not include any of the foregoing activities engaged in with
the prior written approval of the Board of Directors of the
Company.
(c) If
any
restriction set forth with regard to Non-Competition or Non-Solicitation is
found by any court of competent jurisdiction, or in arbitration, to be
unenforceable because it extends for too long a period of time or over too
great
a range of activities or in too broad a geographic area, it shall be interpreted
to amend over the maximum period of time, range of activities or geographic
area
as to which it may be enforceable. If any provision of this Section shall be
declared to be invalid or unenforceable, in whole or in part, as a result of
the
foregoing, as a result of public policy or for any other reason, such invalidity
shall not affect the remaining provisions of this Section 7, which shall remain
in full force and effect.
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(d) During
the Employment Term and for two (2) years following the termination of
Employee’s employment for any reason whatsoever, whether by the Company or by
the Employee and whether or not with Cause, Good Reason or non-extension of
the
Employment Term, the Employee will not engage in Solicitation.
(e) During
the Employment Term and for the Restricted Period (as hereafter defined)
following a termination of Employee’s employment, Employee will not enter into
Competition with the Company. The “Restricted Period” shall mean (i) for a
termination with Cause, two (2) years following the date of termination, (ii)
for termination without Cause by the Company, or for Good Reason by the
Employee, the Severance Period, (iii) for termination as a result of the
voluntary resignation by the Employee without Good Reason, one (1) year from
the
date of termination, and (iv) for termination of employment under any
circumstances after the expiration of the Employment Term, one (1) year from
the
date of termination. The Employee expressly agrees and acknowledges that his
promises, obligations, and covenants under Section 6 above, and this Section
7,
survive the Employment Term identified in Section 1.
(f) In
the
event of a breach or potential breach of Section 7, Employee acknowledges that
the Company and its Affiliates will be caused irreparable injury and that money
damages may not be an adequate remedy and agree that the Company and its
Affiliates shall be entitled to injunctive relief (in addition to its other
remedies at law) to have the provisions of Sections 7 enforced. It is hereby
acknowledged that the provisions of Section 7 are for the benefit of the Company
and all of the Affiliates of the Company and each such entity may enforce the
provisions of Sections 7 and only the applicable entity can waive the rights
hereunder with respect to its confidential information and
employees.
(g) Furthermore,
in addition to and not in limitation of any other remedies provided herein
or at
law or in equity, in the event of a breach of Section 7 by the Employee, while
he is receiving compensation or benefits under Section 5 above, the Employee
shall not be entitled to receive any future amounts pursuant to Section 5 (a)
or
(d) hereof and shall reimburse the Company for any amounts previously paid
to
the Employee pursuant to Section 5(a) or (d) hereof.
(h) The
Company's obligation to make payments, or provide for any benefits under this
Agreement (except to the extent vested or exercisable) shall cease upon a
violation of the preceding provisions of this section.
Section
8. Acknowledgment. The
Employee acknowledges that he has carefully read and considered all of the
restraints imposed pursuant to Sections 6 and 7 and that each and every one
of
said restraints is reasonable in respect to subject matter, length of time
and
area. The Employee further acknowledges that damages at law would not be a
measurable or adequate remedy for a breach of Sections 6 and 7 (non-solicitation
and non-competition), and accordingly consents to the entry by any court of
competent jurisdiction of order enjoining him from violating any of such
covenants. If any of the covenants contained in Sections 6 and/or 7 are held
to
be invalid or unenforceable because of the duration of such provision or the
area covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision and
in
its reduced form said provision shall then be enforceable.
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Section
9. Withholdings.
The
Company may directly or indirectly withhold from any payments made under this
Agreement all Federal, state, city or other taxes and all other deductions
authorized by the Employee or by law.
Section
10. Consolidation,
Merger or Sale of Assets.
Nothing
in this Agreement shall preclude the Company from consolidating or merging
into
or with, or transferring all or substantially all of its assets to, or engaging
in any other business combination with, any other person or entity which assumes
this Agreement and all obligations and undertakings of the Company hereunder.
Upon such a consolidation, merger, transfer of assets or other business
combination and assumption, the term “Company” used herein shall mean such other
person or entity and this Agreement shall continue in full force and
effect.
Section
11. Indemnification.
The
Company and BCI shall indemnify, to the fullest extent permitted by law, and
the
Company’s and BCI’s articles of incorporation and bylaws, Employee, from and
against any expenses (including attorney’s fees), judgments, fines, taxes,
penalties and amounts paid in settlement actually and reasonably incurred by
Employee in connection with any threatened, pending or completed action, suit
or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director, officer, or employee of the Company.
Section
12. Notices.
All
notices, requests, demands and other communications required or permitted
hereunder shall be given in writing and shall be deemed to have been duly given
if delivered or mailed, postage prepaid, by same day or overnight mail (i)
if to
the Employee, at the address set forth above, or (ii) if to the Company, as
follows:
00
Xxxxxx Xxxx
Xxxxxxx
Xxxx, Xxx Xxxxxx 00000
Attn:
General Counsel
or
to
such other address as either party shall have previously specified in writing
to
the other.
Section
13. Binding
Agreement; No Assignment.
This
Agreement shall be binding upon, and shall inure to the benefit of, the Employee
and the Company and their respective permitted successors, assigns, heirs,
beneficiaries and representatives. This Agreement shall be for the sole benefit
of the parties to this Agreement and their respective heirs, successors,
permitted assigns (if any) and legal representatives and is not intended, nor
shall be construed, to give any person, other than the parties hereto and their
respective heirs, successors, permitted assignees (if any) and legal
representatives, any legal or equitable right, remedy or claim hereunder. This
Agreement is personal to the Employee and may not be assigned by him without
the
prior written consent of the Company. Any attempted assignment in violation
of
this Section 13 shall be null and void.
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Section
14. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New Jersey, without reference to the choice of law
principles thereof.
Section
15. Dispute
Resolution. Any
dispute or controversy between the Company and the Employee relating to this
Agreement, unless otherwise specifically required by a plan document, shall
be
settled by litigation between the parties. Said litigation to be venued in
the
Supreme Court of the State of New Jersey, law division, Bergen County vicinage.
The Employee hereby consents to, and waives any objection to, the personal
jurisdiction and venue of the aforesaid courts, and waives any claim that
aforesaid courts constitute on inconvenient forum.
Section
16. Entire
Agreement.
This
Agreement shall constitute the entire agreement among the parties with respect
to the matters covered hereby and shall supersede any and all previous written,
oral or implied understandings among them with respect to such
matters.
Section
17. Amendments.
This
Agreement may only be amended or otherwise modified, and compliance with any
provision hereof may only be waived, by a writing executed by all of the parties
hereto.
Section
18. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, and all of which shall together be deemed to
constitute one and the same instrument.
Section
19. Waiver.
Any of
the terms or conditions of this Agreement may be waived at any time by the
party
or parties entitled to the benefit thereof, but only by a writing signed by
the
party or parties waiving such terms or conditions. No waiver of any provisions
of this Agreement or of any rights or benefits arising hereunder shall be deemed
to or shall constitute a waiver of any other provisions of this Agreement
(whether or not similar) nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided in writing.
Section
20. Severability.
The
invalidity of any portion hereof shall not affect the validity, force or effect
of the remaining portions hereof. If it is ever held that any restriction
hereunder is too broad to permit enforcement of such restriction to its fullest
extent, such restriction shall be enforced to the maximum extent permitted
by
law.
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Section
21. Survival.
The
covenants set forth in Sections 6 and 7 of this Agreement shall survive and
shall continue to be binding upon Employee notwithstanding the termination
of
this Agreement for any reason whatsoever. The covenants set forth in Sections
6
and 7 of this Agreement shall be deemed and construed as separate agreements
independent of any other provision of this Agreement. The existence of any
claim
or cause of action by Employee against Company, whether predicated on this
Agreement or otherwise shall not constitute a defense to the enforcement by
Company of any or all covenants. It is expressly agreed that the remedy at
law
for the breach or any such covenant is inadequate and that injunctive relief
shall be available to prevent the breach or any threatened breach thereof.
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
by
the undersigned, thereunto duly authorized, and the Employee has signed this
Agreement, all as of the date first written above.
| BERLINER COMMUNICATIONS, INC. | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxxx | |
|
Xxxx Xxxxxxxx |
||
| Chief Executive Officer | ||
| EMPLOYEE | ||
| |
|
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| Xxxxxxxx Xxx | ||
|
Xxxxxxxx Xxx |
||
| And with respect to the obligation to Indemnify as set forth in Section 11: | |||
| BCI Communications, Inc. | |||
| By: /s/ Xxxx Xxxxxxxx | |||
|
Xxxx
Xxxxxxxx
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|
Chief
Executive Officer
|
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