AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT
NO. 1 TO
THIS
AMENDMENT (this “Amendment”), is made
and entered into as of January 27, 2010, by and between 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 as of June 30, 2009 (the “Agreement”);
WHEREAS,
the Company has entered into an Agreement and Plan of Merger, dated as of the
date hereof (the “Merger Agreement”),
by and among the Company, BCI East, Inc. (“Merger Sub”), Unitek
Holdings, Inc. (“Unitek”) and the
other parties signatory thereto, pursuant to which Merger Sub will merge with
and into Unitek (the “Merger”);
and
WHEREAS,
in connection with the Merger, the Company and the Employee desire to enter into
this Amendment and to amend the Agreement as set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and promises herein and
intending to be legally bound hereby, the parties hereto agree as
follows:
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1.
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Section 2 of
the Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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Position and
Duties. During the Employment Term, the Employee shall serve
as Chief Operating Officer of BCI Communications, Inc. ("BCI") and shall
report to the Chief Executive Officer of BCI. The 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 the Chief Executive Officer of
BCI. During the Employment Term the Employee shall use his best
efforts to faithfully perform his duties hereunder and shall devote all of his
business time, attention, skill and efforts exclusively to the business affairs
of the Company, its subsidiaries and its Affiliates and the Employee agrees that
he shall abide by all applicable policies of the Company of which he is made
aware or reasonably should be aware.
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2.
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Each
bullet point and the final sentence of Section 3(b)
of the Agreement and Exhibit A to the Agreement are hereby amended by
replacing each of the terms “Company’s” and “Company” in each instance
either such term is used with the terms “BCI’s” and “BCI”, respectively,
the intent being that the Employee’s fiscal 2010 cash and stock option
bonuses shall be based on the financial performance of BCI, measured by
BCI’s revenue, gross margin and EBITDA, or BCI’s EBITDA, as the case may
be, on a standalone basis and not on a consolidated basis with the Company
or any other subsidiary of the Company or any other Affiliate of the
Company. For the avoidance of doubt, and as is set forth in the
last sentence of Section 3(b) of the Agreement before the bullet points
thereunder, the Employee's 2010 cash bonus shall continue to be based on
the metrics and formula set forth on Exhibit A attached thereto, as
modified by this paragraph 2.
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3.
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Section 3(c) of
the Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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Premiums/Contributions. During
the Employment Term, the Employee shall be entitled to participate in all single
or family medical and dental health plans and programs offered to similarly
situated employees without any employee contributions; provided, that, to the extent
such plans and programs are self-insured the Employee shall be required to pay
employee contributions and the Company shall reimburse the Employee for the
amount of such contributions.
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4.
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The
preamble of Section 5 of
the Agreement is hereby deleted in its entirety and replaced with the
following clause:
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Effect of Termination of
Employment. The Employment Term shall terminate at the earlier
to occur of the applicable date set forth in Section 1 hereof or
any of the following circumstances:
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5.
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The
third sentence of Section 5(a) of
the Agreement is hereby deleted in its entirety and replaced with the
following sentence:
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The
Severance Payments will be paid ratably over the Severance Period in accordance
with the Company’s normal payroll practices.
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6.
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Section 5(b) of
the Agreement is hereby amended by changing the words “This Agreement” to
“The Employment Term” where the former first appears in such Section 5(b).
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7.
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Section 5(c)
of the Agreement is hereby amended by adding the words “Section 6
and” between the words “set forth in” and “Section 7”
where they appear in such Section 5(c)
and by deleting the words “concerning non-competition and
non-solicitation” at the end of such Section 5(c).
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8.
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Section 5(d)
of the Agreement is hereby amended by adding the words “Section 6
or” between the words “in violation of” and “Section 7”
where they appear in such Section 5(d). Section 5(d)
is hereby further amended by adding the following clause to the end of the
first sentence of such Section 5(d):
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and such
notice is delivered within ninety (90) days of the occurrence of such event,
failure or breach constituting Good Reason and, notwithstanding anything to the
contrary in this Section 5, the
Company shall be given thirty (30) days to cure said Good Reason.
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9.
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Section 5(f)(ii)
of the Agreement is hereby amended by adding the words “or a termination
due to death, disability or resignation” at the end of such Section 5(f)(ii).
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10.
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Section 5(f)(iii)(i)
of the Agreement is hereby amended by replacing the term “COO” with the
words “set forth in Section 2
above”.
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11.
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Section
5(f)(iii)(iii) of the Agreement is hereby deleted in its entirety
and replaced with the following
clause:
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a
requirement by the Company that the Employee be based in an office that is
located more then sixty-five (65) miles from the Employee’s principal place of
employment at BCI's headquarters in Fair Lawn, New Jersey;
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12.
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The
following paragraph is hereby added as a new Section
5(h):
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Delivery
of Release. Notwithstanding anything to the contrary in this Section 5, in
the event that any severance payments or benefits are subject to the Employee’s
execution and delivery of an effective release and waiver substantially in the
form attached hereto as Exhibit B, such release and waiver must be delivered to
the Company within sixty (60) days following the date of the Employee’s
termination of employment and the first installment payment shall be made on the
sixtieth (60th) day after the date of the termination of employment and shall
include payment of any amounts that would otherwise be due prior thereto (unless
an earlier payment is permitted pursuant to Section 409A of the
Code).
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13.
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The
following paragraph is hereby added as a new Section
7(b)(v):
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For
purposes of this Agreement, “Board” shall mean the Board of Directors of the
Company.
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14.
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The
following paragraph is hereby added as a new Section
22:
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Section 409A
Compliance. If any payment or other benefit provided to the
Employee in connection with his termination of employment is determined, in
whole or in part, to constitute “nonqualified deferred compensation” within the
meaning of Section 409A of the Code (“Section 409A”)
and the Company determines that the Employee is a “specified employee” as
defined in Section 409A, no part of such payments or benefits shall be paid
before the day that is six (6) months plus one (1) day after the Employee’s
termination date (the “New Payment
Date”). The aggregate of any payments that otherwise would
have been paid to the Employee during the period between the date of termination
and the New Payment Date shall be paid to the Employee in a lump sum on such New
Payment Date. Thereafter, any payments that remain outstanding as of
the day immediately following the New Payment Date shall be paid without delay
over the time period originally scheduled, in accordance with the terms of this
Agreement. Notwithstanding the foregoing, to the extent that the
foregoing applies to the provision of any ongoing welfare benefits to the
Employee that would not be required to be delayed if the premiums therefore were
paid by the Employee, the Employee shall pay the full cost of premiums for such
welfare benefits during the six (6) month period and the Company shall pay the
Employee an amount equal to the amount of such premiums paid by the Employee
during such six-month period promptly after its conclusion. In the
event that any provision of this Agreement is determined to be (i) subject to
Section 409A and (ii) noncompliant with Section 409A or the final regulations
promulgated thereunder, the Company and the Employee shall negotiate in good
faith to modify such noncompliant provision in a manner that avoids, to the
maximum extent possible, the imposition of additional taxes under Section 409A
on the Employee.
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15.
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The
following paragraph is hereby added as a new Section
23:
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Separation from
Service. A termination of service shall not be deemed to have
occurred for purposes of any provision of this Agreement providing for the
payment of any amounts or benefits that are considered nonqualified deferred
compensation under Section 409A upon or following a termination of service,
unless such termination is also a “separation from service” within the meaning
of Section 409A and the payment thereof prior to a “separation from service”
would violate Section 409A. For purposes of any such provision of
this Agreement relating to any such payments or benefits, references to a
“termination,” “termination of employment,” “termination of service,” or like
terms shall mean “separation from service.”
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16.
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The
following paragraph is hereby added as a new Section
24:
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Installments as Separate
Payments. If under this Agreement, an amount is paid in two
(2) or more installments, for purposes of Section 409A, each installment shall
be treated as a separate payment.
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17.
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The
Employee acknowledges and agrees that none of the Merger Agreement, the
consummation of the transactions contemplated thereby (including, without
limitation, the Merger) or this Amendment (and the changes to the
Agreement set forth herein, including, without limitation, any change in
office or title, duties or compensation (whether related to base salary or
referenced cash bonus)) and any changes in connection with or directly
relating to the changes set forth in this Amendment shall be deemed an
occurrence of any item listed as constituting “Good Reason” for purposes
of the Agreement as set forth in Section 5(f)(iii)
thereof; provided,
however, that the parties acknowledge and agree that nothing in
this paragraph 17 shall be construed as precluding the Employee from
claiming "Good Reason" termination under the terms of the Agreement, as
amended by this Amendment (the "Amended
Agreement"), if after the effective date hereof, any other changes
are made to the Employee's terms and conditions of employment and such
other changes constitute "Good Reason" under the Amended
Agreement.
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18.
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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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19.
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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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20.
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This
Amendment may be executed in multiple counterparts, which, when taken
together, shall constitute one
instrument.
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21.
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The
effectiveness of this Amendment shall be expressly conditioned upon the
consummation of the transactions contemplated by the Merger
Agreement. If the transactions contemplated by the Merger
Agreement are not consummated, then this Amendment shall be deemed void
ab initio, and
the Agreement shall remain unchanged and in full force and
effect.
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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.
BERLINER
COMMUNICATIONS, INC.
By:
/s/ Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
President
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
EXHIBIT
B
FORM
OF RELEASE
[COMPANY
LETTERHEAD]
[Employee
Name and Address]
Dear
[Employee Name]:
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
[ended] [was terminated] effective as of the close of business, [date]
(“Termination Date”), and your employment under the terms of the agreement
between the Company and you dated [date] (“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 [list 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: [insert applicable payments and benefits
from employment agreement].
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 [insert type of
separation].
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.
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 a 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.
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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.
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Very
truly yours,
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[Name
and
Position]
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Accepted
and Agreed:
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[Employee’s
Name]
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Date
Signed
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