EMPLOYMENT AGREEMENT
Exhibit
10.3
EMPLOYMENT
AGREEMENT (this “Agreement”), dated December 12, 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 Xxxxxxx X. Xxxxxxxxx (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 Chief Operating Officer 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 Chief Operating Officer
(“COO”)
of the Company and shall report to the Chief Executive Officer. Employee
shall
have such powers and duties as are commensurate with such position 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 COO 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.
Employee’s fiscal 2008 cash bonus will be based on the following
factors:
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The
financial performance of the Company, measured by the Company’s revenue,
gross margin and EBITDA for the fiscal year;
and
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The
Employee’s personal performance, measured by the financial performance of
the Company’s branch offices, customer satisfaction, and executive
management and development.
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In
addition, Employee will have the opportunity to earn stock options as part
of
his fiscal 2008 bonus program at the rate of 20,000 stock options for each
$1
million in EBITDA achieved by the Company, with no stock options awarded
unless
the Company achieves $3.5 million in EBITDA for the fiscal 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 $7,200.00, which will be payable on
a
pro-rata basis in association with the regular payroll schedule and subject
to
normal payroll deductions and withholdings.
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.
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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 the 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 (as hereonafter defined) 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 (i) to pay Employee
any
earned and accrued Based Salary and the value of any earned, accrued, unused
vacation (ii) reimbursement under this Agreement for expenses pursuant to
Section 4 incurred prior to the effective date of termination; and (iii)
all
other vested benefits under the Company’s plans and programs, subject to the
terms of such plans and programs. 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 within six (6) months 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. In
addition, a Change of Control as defined herein shall be deemed to constitute
a
“Change in Control” as such term is used in the Company’s Omnibus Securities
Plan, and Employee shall have the right, without further action by the Board
of
Directors or the Stock Plan Committee, to have the vesting or exercisability
of
any outstanding stock option awards (or similar equity grants awarded under
said
Plan) accelerated so that immediately prior to the consummation of the Change
in
Control, Employee could convert, claim or excersie, as applicable, any such
equity awards to the full extent not yet converted, claimed or excersied,
(including any installments which have not yet become vested or
excercisable).
(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 materially 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.
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(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 inconsistent with Employees position
as
Chief Operating 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) 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.
(v)
“Disability” shall mean Employee’s inability, by virtue of physical or mental
illness or injury, to perform his regular duties on a full-time, continuous
basis for 120 consecutive days. Employee’s disability will be established if a
qualified medical doctor selected by the parties so certifies in writing.
If the
parties are unable to agree on the selection of such a doctor, each party
will
designate a qualified medical doctor who together will select a third doctor
who
will make the determination. Employee will make himself available for an
examination by a doctor selected in accordance with this paragraph.
(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.
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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, 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) (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.
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(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.
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(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.
(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.
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(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.
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.
Company will require any such successor (whether by purchase, merger,
consolidation or similar transaction) to all or substantially all of the
business and/or assets of the Company, by agreement in form and substance
reasonably satisfactory to Employee, to expressly assume and agree to perform
this Agreement in substantially the same manner and substantially the same
extent that Company would be required to perform if not such succession had
taken place. 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,
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:
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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.
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.
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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.
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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11
-
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 | ||
| |
|
|
| /s/ Xxxxxxx X. Xxxxxxxxx | ||
|
Xxxxxxx X. Xxxxxxxxx |
||
| And with respect to the obligation to Indemnify as set forth in Section 11: | |||
| BCI Communications, Inc. | |||
| By: /s/ Xxxx Xxxxxxxx | |||
|
Xxxx
Xxxxxxxx
|
|||
|
Chief
Executive Officer
|
|||
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12
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