SEPARATION AGREEMENT
This
SEPARATION AGREEMENT (this “Agreement”) is made between Xxxxxx X. Xxxxxxxxxx
(“EMPLOYEE”) and Berliner Communications, Inc. and its affiliates (collectively,
“BCI”). Together, EMPLOYEE and BCI are referred to as the “Parties”. This
Agreement will become effective on date the EMPLOYEE executes this Agreement
(the “Effective Date”).
WHEREAS,
EMPLOYEE
and BCI entered into an Employment Agreement (the “Employment Agreement”) dated
October 10, 2006;
WHEREAS,
EMPLOYEE and BCI have agreed that EMPLOYEE’s employment will terminate by mutual
agreement effective as of 12:00 p.m. Tuesday, January 1, 2008 (the “Termination
Date”); and
WHEREAS,
EMPLOYEE and BCI have agreed to settle fully and finally any and all matters
between them relating to EMPLOYEE’s employment and termination thereof and
acknowledge the receipt of other good and valuable consideration.
NOW,
THEREFORE,
with
the intent to be legally bound hereby, and in consideration of the mutual
promises and covenants contained herein, and other good and valuable
consideration, BCI and EMPLOYEE agree to the terms and conditions set forth
below:
1. Salary:
BCI
agrees to continue to pay EMPLOYEE his annual compensation of $225,000.00
(in
addition to his previously approved car allowance), less ordinary and customary
withholdings for the period ending on the Termination Date (“Separation Period”)
pursuant to BCI’s standard payroll procedures.
2. Bonus:
Provided EMPLOYEE continues to serve as an employee at BCI (performing
substantially the same functions as he has historically provided to BCI),
BCI
shall pay EMPLOYEE a bonus of (i) an amount equal to one week’s pay on the next
payroll date following the date hereof, (ii) $30,000.00 on November 28, 2007
and
(iii) 30,000.00 on January 1, 2008, less ordinary and customary withholdings.
3. Benefits:
Employee will continue to receive all benefits as such benefits have been
previously provided to EMPLOYEE. As of the Termination Date, EMPLOYEE shall
be
eligible to elect the continuance of group health insurance benefits in
accordance with the federal COBRA law, at EMPLOYEE’s expense.
(a)
EMPLOYEE agrees that he will resign as an employee of Berliner Communications,
Inc. and BCI Communications, Inc. effective January 1, 2008. EMPLOYEE agrees
that he may need to resign as Chief Financial Officer and Treasurer prior
to
that date if BCI hires a replacement during this period, and BCI agrees that
this change in title will not reduce or diminish its obligations to EMPLOYEE
hereunder in any manner. EMPLOYEE acknowledges and agrees that he is due
no
other compensation, benefits or other consideration of any kind, other than
as
specifically identified in this Agreement. As of the close of business on
the
Termination Date, EMPLOYEE shall have no further duties as an employee of
BCI,
but will still be subject to any continuing obligations expressly provided
for
in this Agreement.
(b)
BCI
agrees that if, during the Separation Period, EMPLOYEE is subject to a “Without
Cause Termination” (defined below), BCI shall continue to pay EMPLOYEE all of
the salary and bonus payments that remain due to EMPLOYEE under Sections
1 and 2
hereof. By way of example, if EMPLOYEE is subject to a Without Cause Termination
on December 1, 2007, and all salary and bonus payments have been made up
to and
through that date, EMPLOYEE would continue to receive his salary for the
month
of December and his January 11, 2008 bonus payment.
(c)
“Without Cause Termination” means a termination of the EMPLOYEE’s employment by
BCI other than due to expiration of the Separation Period and other than
a
Termination for Cause. “Termination for Cause” means a termination of the
EMPLOYEE's employment by BCI 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 or engaged in conduct
detrimental to the business of BCI, (c) been convicted of a felony or any
crime
involving moral turpitude, or (d) violated in any material respect the
provisions of Sections 6, 7 or 8 below.
5. Equipment
and Property:
EMPLOYEE
agrees to promptly return to BCI all BCI property including, but not limited
to,
any and all computers, cellular telephones, card key passes, corporate credit
cards, telephone cards, files, memoranda, keys, any other hardware and/or
software that is in his possession.
6. Release:
6.1 In
consideration of the arrangements described in the preceding paragraphs,
EMPLOYEE hereby releases and discharges BCI and all individuals now or
previously employed by BCI, including, but not limited to, its officers,
directors, agents, employees, predecessors, successors, and assigns (whether
any
of the aforementioned individuals were acting as agents for BCI or in their
individual capacities), from any and all claims and causes of action (except
actions brought to obtain benefits or monies specifically set forth in this
Agreement) which EMPLOYEE, his heirs, executors, administrators, successors,
and
assigns now have, ever had or may hereafter have up to and including the
Termination Date, except for actions based on willful misconduct or
fraud.
6.2 In
consideration of the arrangements described in this agreement, BCI hereby
releases and discharges EMPLOYEE from any and all claims and causes of action
(except actions brought to enforce the obligations specifically set forth
in
this Agreement), except for actions or claims based on willful misconduct
or
fraud.
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(a)
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EMPLOYEE
hereby covenants and agrees that he shall not, for a period of
two (2)
years following the Termination Date, without the express written
consent
of BCI:
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(i)
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use
or disclose any Confidential Information, however acquired. As
referred to
in this Agreement, “Confidential
Information”
shall mean information, not already in the public domain, about
BCI, and
its clients and customers that was learned by EMPLOYEE in the course
of
his employment with BCI, including, without limitation, any trade
secrets,
customer lists, prospective customers, rates, contracts, contractors’ and
subcontractors’ lists, financial information, financial projections or
budgets, internal financial controls, acquisition or joint venture
targets, computer programs, and other data, services, vendors,
processes,
or methods related to the business of
BCI;
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(ii)
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duplicate
or replicate or cause or permit others to duplicate or replicate
any
document or other material in any medium embodying any Confidential
Information; and
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(iii)
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disclose
or permit the disclosure of any Confidential Information to any
person or
entity, under any circumstances, unless EMPLOYEE is required to
disclose
such information by law or pursuant to a judicial order, in which
case
EMPLOYEE must provide three (3) days’ prior written notice to BCI,
including the type of Confidential Information to be disclosed,
and BCI
must consent to such disclosure if such consent is permissible
within the
judicial time constraints.
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8. Non-Compete
and Non-Solicitation Obligations.
EMPLOYEE
acknowledges and agrees that, so long as BCI has not defaulted on its
obligations to EMPLOYEE hereunder, as agreed to by the EMPLOYEE in Section
7 of
the Employment Agreement:
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(a)
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for
a period of two (2) years immediately following the Termination
Date,
except upon the express written consent of BCI, EMPLOYEE hereby
covenants
and agrees that he shall not, directly or indirectly, except for
general
solicitations not directed at BCI specifically, solicit or recruit
any
employee, officer, partner or consultant of BCI to leave the employment
of
BCI or terminate his/her relationship with BCI and that he will
not advise
or otherwise assist or advise any other person to solicit or recruit
any
employee, officer, partner or consultant of
BCI.
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(b)
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For
a period of one (1) year from the Termination Date, EMPLOYEE will
not
engage in Competition, as such term is defined in Section 7(c)
of the
Employment Agreement. BCI agrees that EMPLOYEE may accept employment
with
Dianet Communications, Inc. without violating this covenant not
to
compete.
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The
parties agree that the provisions of this Section
8
shall be
interpreted as broadly as possible to enforce such provisions; provided,
however,
that in
the event that any provision of this Section
8 is
held
invalid or unenforceable or is deemed to exceed the time, geographic or scope
limitations permitted by applicable law, then such provisions shall be reformed
to the maximum time, geographic or scope limitations, as the case may be,
permitted by applicable laws, and such other changes shall be made to give
effect to the original intent of the parties.
9.1 BCI
represents that it has the authority to enter into this Agreement and that
it
has obtained the necessary corporate approvals to do so.
9.2 EMPLOYEE
represents and warrants that he is fully capable of understanding the terms
and
conditions of this Agreement; that he has carefully read the Agreement in
its
entirety; that he has had the opportunity to have the provisions of the
Agreement explained to him by his own independent counsel, that he fully
understands their terms and significance; and that he voluntarily assents
to all
the terms and conditions contained herein.
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10. Indemnification.
BCI will continue to indemnify EMPLOYEE to the same extent EMPLOYEE was and
has
been covered by the indemnification provisions of BCI’s articles of
incorporation and bylaws until the Termination Date, and thereafter to the
same
extent other officers would be covered for prior actions after termination
of
employment.
11. Severability:
If, at
any time after the Effective Date of this Agreement, any provision of this
Agreement shall be held to be illegal, void or unenforceable, such provision
shall be of no force and effect. However, the illegality or unenforceability
of
such provision shall have no effect upon, and shall not impair the
enforceability of any other provision of this Agreement.
12. No
Oral Modification:
This
Agreement may not be modified except in a writing signed by both EMPLOYEE
and
the CEO of BCI.
13. Choice
of Law:
This
Agreement will be construed and enforced in accordance with the laws of the
State of New Jersey, without regard to its conflict of law rules.
14. Construction
of Agreement:
This
Agreement shall be interpreted without regard to the identity of the drafter,
and shall not be construed for or against either party.
15. Binding
Agreement:
This
Agreement shall be binding upon the Parties and upon their heirs,
administrators, representatives, executors, successors and assigns.
WHEREFORE,
the
Parties, by their signatures below, evidence their agreement to the provisions
stated above:
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Berliner
Communications, Inc.
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Signature:
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/s/ Xxxx Xxxxxxxx | ||
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Dated:
October 17, 2007
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By:
Xxxx Xxxxxxxx
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Title:
Chief Executive Officer
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Dated:
October 17, 2007
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Signature:
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/s/ Xxxxxx X. Xxxxxxxxxx | |
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Xxxxxx
X. Xxxxxxxxxx
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