AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
AMENDMENT
NO. 2 TO
This
AMENDMENT (this “Amendment”) is made
and entered into as of July 9, 2010, by and between UniTek Global
Services, Inc. (formerly Berliner Communications, Inc.), a Delaware corporation
(the “Company”), and
Xxxxxxx X. Xxxxxxxxx (the “Employee”).
WHEREAS,
the Company and the Employee are parties to that certain Employment Agreement
dated June 30, 2009 and amended by Amendment No. 1 to Employment
Agreement, dated January 27, 2010 (together, the “Agreement”);
WHEREAS,
the Company and the Employee desire to enter into this Amendment and to amend
the Agreement as set forth herein; and
WHEREAS,
capitalized terms used herein but not defined herein shall have the meanings
ascribed to them in the Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties agree as follows:
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1.
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Resignation. The
Employee shall resign from all of his positions of employment with the
Company and any of its Affiliates effective as of the close of business on
July 23, 2010 (the “Resignation
Date”). The Employee hereby acknowledges and agrees that
this Amendment shall be deemed to provide the written notice of
non-extension as required by Section 1
of the Agreement and that the Employment Term shall end on July 23, 2010
unless sooner terminated pursuant to Section 5 of
the Agreement.
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2.
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Section 3(f) is
hereby amended by adding the following sentence to the end of such
section:
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Notwithstanding
the foregoing or any provision in the Company's Stock Option Award Policy or the
Company's applicable Omnibus Securities Plan to the contrary, all of the
Employee's options which remain outstanding immediately prior to the Resignation
Date (or, if applicable, such earlier termination of Employee's employment),
shall continue to vest according to the terms of the respective stock option
award agreements for a period of one year from the Resignation Date so long as
Employee continues to meet all of his obligations set forth in the Agreement or
herein. All vested stock options shall remain exercisable for a
period of twelve months following the Resignation Date so long as Employee
continues to meet all of his obligations set forth in the Agreement and
herein.
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3.
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Beginning with the first
applicable pay-roll after June 30, 2010 and for twelve months
hereafter
(the “Severance Period”), Employee will receive severance
payments equal to one year of salary ($250,000.00), paid ratably over the
Severance Period in accordance with the Company’s normal payroll
practices, including applicable
withholdings.
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4.
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Section 7(b)(i)
of the Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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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 or consultant
(within the United States of America, or in any country where BCI does business)
in a Competing Business (as defined below); provided, however, that such
participation shall not include (i) the mere ownership of not more than three
percent (3%) of the total outstanding stock of a publicly held company; or (ii)
any activity engaged in with the prior written approval of the Board of
Directors of the Company (the “Board”).
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5.
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Section
7(b)(ii) of the Agreement is hereby deleted in its entirety and
replaced with the following
paragraph:
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(ii) For
the purposes of this Agreement, “Competing Business” shall mean any principal
line of business engaged in by BCI that is also a principal line of business
engaged in by the entity for which the Employee is then acting in any of the
capacities referenced in Section 7(b)(i)
above, but only to the extent that the Employee has knowledge of the Competing
Business of BCI prior to his termination of employment with BCI which is
reasonably likely to cause material economic harm to BCI.
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6.
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Section 7(e) of
the Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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(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 twelve (12)
months following the date of Employee's termination of employment with BCI for
any reason. 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
hereof.
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7.
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Employee
has signed the Release attached to Amendment No. 1 of the Agreement, and
agrees to be bound by his obligations set forth
therein.
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8.
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All
other provisions of the Agreement not specifically amended in this
Amendment shall remain in full force and
effect.
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9.
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This
Amendment 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.
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10.
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This
Amendment may be executed in multiple counterparts, which, when taken
together, shall constitute one
instrument.
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2
IN WITNESS WHEREOF, the
Company has caused this Amendment to be executed on its behalf by its duly
authorized officer and the Employee has executed this Amendment, as of the date
first written above.
| UNITEK GLOBAL SERVICES, INC. | |||
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By:
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/s/ C. Xxxxx Xxxxx | |
| Name: | C. Xxxxx Xxxxx | ||
| Title: | Chief Executive Officer | ||
| EMPLOYEE | |||
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By:
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/s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxx | ||
| Title | |||
ACCEPTED
AND ACKNOWLEDGED BY:
BCI
Communications, Inc.
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/s/
Xxxxxxxx Xxx
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| Name: |
Xxxxxxxx
Xxx
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| Title: |
General
Counsel & Secretary
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EXHIBIT
B
FORM
OF RELEASE
Xxxxxxx
X. Xxxxxxxxx
00 Xxxx
Xxxxx
Xxxxxx,
XX 00000
Dear
Xxxx:
This is
to confirm our agreement relating to your separation from
employment.
1. In
consideration of the terms hereof, your employment with the Company shall end
effective as of the close of business, July 23, 2010 (“Termination
Date”), and your employment under the terms of the agreement between the Company
and you dated June 30, 2009 and the Amendment No. 1 dated January 27, 2010
(“Employment Agreement”) is hereby terminated at such time. In
addition to any salary payments owing for the final payroll period through the
Termination Date and whatever vested rights you may have under the applicable
Company benefit plan(s), you shall receive the following payment(s) and benefits
[for the period(s) indicated], less any payroll deductions required by law,
which shall be in lieu of any other payments or benefits (including vacation or
other paid leave time) to which you otherwise might be entitled.
2. In
consideration of the terms hereof, you have agreed to and do waive any claims
you may have for employment by the Company or any of its subsidiaries and have
agreed not to seek such employment or reemployment by the Company or any of its
subsidiaries in the future. You have further agreed to and do release
and forever discharge the Company, subsidiaries and affiliates and each of their
respective past and present officers, directors, managers, shareholders,
partners, members, employees, representatives and agents from any and all claims
and causes of action, known or unknown, arising out of, relating to or occurring
during your employment by the Company or any of its subsidiaries or the
termination thereof, including, but not limited to, wrongful discharge, breach
of contract, tort, fraud, defamation, the Civil Rights Acts, Age Discrimination
in Employment Act, Americans with Disabilities Act, Employee Retirement Income
Security Act, Family Medical Leave Act or any other federal, state or local law
relating to employment, discrimination in employment, termination of employment,
wages, benefits or otherwise. This release does not include your
right to enforce the terms of this agreement.
3. You
and the Company agree that in the event you apply for unemployment insurance
benefits, the Company shall respond to any inquiry from the applicable
governmental authority that your employment ended as a result of
resignation.
4. You
and the Company agree that in the event the Company receives any inquiries from
prospective employers, it shall be the policy of the Company to respond by
advising that the Company’s policy is to provide information only as to service
dates and positions held and by providing such information.
5. You
agree to return to the Company prior to the effective date of your termination
of employment all property and documents of the Company or any of its
subsidiaries in your possession, custody or control, including, without
limitation, automobiles, credit cards, computers and telecommunication
equipment, keys, instructional and policy manuals, mailing lists, computer
software, financial and accounting records, reports and files, and any other
physical or personal property which you obtained in the course of your
employment by the Company or any of its subsidiaries, and you further agree not
to retain copies of any such documents, excluding publicly available documents
and documents relating directly to your own compensation and employee
benefits.
UniTek
Global Services
0000
Xxxxxx Xxxxxxx Xxxx
Xxxxxxx
Xxxx, Xxxxx 000
Xxxx
Xxxx, XX 00000
1
6. You
agree that the restrictive covenants set forth in Section 6 and Section 7
of the Employment Agreement shall remain in full force and effect in accordance
with the terms of the Employment Agreement.
7. You
agree to provide your reasonable cooperation in connection with any action or
proceeding (or any appeal from any action or proceeding) to which you were
participating in as of the Termination Date or about which you had specific
knowledge if so requested by the Company; provided, that, the Company will pay
any reasonable costs and expenses you incur in connection therewith; provided,
further, that, such cooperation will not unreasonably interfere with your
then-current employment or business activities.
8. You
agree to maintain the terms of this agreement confidential to the extent
practicable and as permitted by law, except that you may disclose this agreement
to your legal and financial advisors and to your spouse.
9. Neither
by offering to make nor by making this agreement does either party admit any
failure of performance, wrongdoing, or violation of law.
10. This
agreement, together with Section 6 and Section 7 of the Employment Agreement,
sets forth the entire understanding of the parties and supersedes any and all
prior agreements, oral or written, relating to your employment by the Company or
any of its subsidiaries or the termination thereof. This agreement
may not be modified except by in writing, signed by you and by a duly authorized
officer of the Company. This agreement shall be binding upon your
heirs and personal representatives, and the successors and assigns of the
Company.
11. You
acknowledge that before entering into this agreement, you have had the
opportunity to consult with any attorney or other advisor of your choice, and
you have been advised to do so if you choose. You further acknowledge
that you have entered into this agreement of your own free will, and that no
promises or representations have been made to you by any person to induce you to
enter into this agreement other than the express terms set forth
herein. You further acknowledge that you have read this agreement and
understand all of its terms, including the waiver and release of claims set
forth in paragraph 2 above.
***
UniTek
Global Services
0000
Xxxxxx Xxxxxxx Xxxx
Xxxxxxx
Xxxx, Xxxxx 000
Xxxx
Xxxx, XX 00000
2
If the
foregoing is acceptable to you, please sign the annexed copy of this agreement
and return it to me. You may take up to 21 days from today to
consider, sign and return this agreement. In addition, you may revoke
the agreement after signing it, but only by delivering a signed revocation
notice to me within seven days of your signing this agreement.
| Very truly yours, | |
| C. Xxxxx Xxxxx | |
| Chief Executive Officer |
Accepted
and Agreed:
Date Signed
UniTek
Global Services
0000
Xxxxxx Xxxxxxx Xxxx
Xxxxxxx
Xxxx, Xxxxx 000
Xxxx
Xxxx, XX 00000
3
