EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT (this “Agreement”), dated October 10, 2006, 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 Xxxxxx Xxxxxxxxxx (the “Employee”), an individual residing at 00
Xxxxx Xxxxxx Xxxx., Xxxxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS,
The
Company desires to secure the services and employment of the Employee on behalf
of the Company, and Employee desires to be employed with the Company upon the
terms and conditions hereinafter set forth.
WHEREAS,
Employee is willing to serve as Chief Financial Officer of the Company, 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, the parties hereto agree as follows:
Section
1. Term
of Employment.
The
Employee's employment under this Agreement shall commence on the date of hereof
and, subject to earlier termination pursuant to Section 5 of this Agreement
below, shall continue until the first anniversary of the date hereof (the
“Employment Term”).
Section
2. Position
and Duties.
During
the Employment Term, the Employee shall serve as Chief Financial Officer (“CFO”)
and shall have such powers and duties as are commensurate with such position
and
as may be conferred upon him from time to time by the Chief Executive Officer
and 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 CFO and shall devote substantially all of his business time, attention,
skill
and efforts 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. The
Company acknowledges that Employee is currently a shareholder and/ or principle
owner of several corporations that may from time to time require Employee’s
involvement.
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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 $175,000 (the “Base Salary”) less
normal deductions and withholdings. The salary payments shall be made in
accordance with the Company’s standard payroll practices.
(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. Notwithstanding the
foregoing, nothing in this Agreement shall preclude the amendment or termination
of any such plans or programs.
(c) Premiums/Contributions.During
the Employment Term, the Employee shall be entitled to participate in all
medical and dental health plans and programs.
(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 $6000, 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) Employee
shall receive options to purchase two hundred fifty thousand (250,000) shares
of
the Company’s Common Stock at fair market value at the time of grant (the
“Options”). The Options are subject to the terms of the Company’s 1999 Omnibus
Securities Plan, or any amendment thereto or such other plan as may be adopted
(the “Stock Option Plan”). One-fourth of the options shall immediately vest on
the date of the grant and the remainder shall vest over a three (3) year
period.
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:
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(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
the
remainder of the Employment Term or for six months, whichever is longer (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. This
payment will be made, at the Company’s option in a lump sum or ratably over the
Severance Period 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). In the event of a termination pursuant to this Section 5(a),
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").
(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-solicitation.
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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, in exchange for a
complete release and waiver, releasing the Company of any and all legal claims
or potential legal claims, an amount equal to his Base Salary then in effect
for
the remainder of the Employment Term or for six months, whichever is longer
(the
“Severance Period”). This payment will be made, at the Company’s option in a
lump sum or ratably over the Severance Period, 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(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). In the event
of a termination pursuant to this Section 5(d), 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 COBRA.
(e) 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.
(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
Employee’s position as Chief Financial Officer (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) 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.
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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, experience 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.
Section
7. Non-Competition and Non-Solicitation.
(a) Employee
hereby discloses to Company that he is a significant shareholder in Dianet
Communications, Inc (Dianet) which may at times be involved in activities
similar to those of the Company. Employee does not actively participate in
the
operations of Dianet and agrees that during the Employment Term and the term
of
the Restricted Period (as defined below) he will refrain from any and all
involvement with Dianet where such involvement would cause him to compete
directly with the Company. The Company authorizes the Employee to maintain
his
current position with Dianet subject to the foregoing.
(b) (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.
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(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.
(c) Definitions
(i) For
the
purposes of this Agreement, except as set forth in 7(a) “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 held company,(ii)
any
activity engaged in with the prior written approval of the Board of Directors
of
the Company; or (iii) that which is permitted in 7(a) above.
(ii) For
the
purposes of this Agreement and except as set forth in 7(a) above, “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.
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(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.
(d) 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.
(e) 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.
(f) Except
as
set forth in 7(a) above, 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 period in which the Company is making payments
to Employees as specified in Section 5 above or should the Company pay a lump
sum for a period of six (6) months following the date of termination, (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.
(g) 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.
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(h) 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.
(i) 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
9. 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.
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. 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:
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00
Xxxxxx Xxxx
Xxxxxxx
Xxxx, Xxx Xxxxxx 00000
or
to
such other address as either party shall have previously specified in writing
to
the other.
Section
12. 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 12 shall be null and void.
Section
13. 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
14. 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
15. 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
16. 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. The provisions of this Section 15 may only be amended or otherwise
modified by such a writing.
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Section
17. Counterparts.
This
Agreement may be execut-ed 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
18. 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
19. 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.
Section
20. 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.
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 October 16, 2006.
| BERLINER COMMUNICATIONS, INC. | ||
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| By: | /s/ Xxxxxx Xxxxxxxxxx | |
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