EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this
“Agreement”), dated June 30, 2009 (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 Xxx., Xxxxxxx Xxxx, XX 00000,
and Xxxxxxx X. Xxxxxxxxx (the “Employee”), an individual residing at 00 Xxxx
Xxxxx, Xxxxxx, XX 00000.
WITNESSETH:
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,
2011 (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 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 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.
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 Board of Directors for consideration of appropriate merit based
increases.
-1-
(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 2010 cash
bonus will be based on the metrics and formula set forth on Exhibit A
attached hereto, and will primarily be based on the following
factors:
|
|
·
|
The
financial performance of the Company, measured by the Company’s revenue,
gross margin and EBITDA for the fiscal year;
and
|
|
|
·
|
The
Employee’s personal performance, measured by the financial performance of
the Company’s branch offices, customer satisfaction, and executive
management and development.
|
In addition, Employee will have the
opportunity to earn stock options as part of his fiscal 2010 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, and no partial awards for less than each
incremental $1 million in EBITDA.
(c)
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 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 a monthly car allowance in the amount of $600.00, which will be payable on a
pro-rata basis in association with the regular payroll schedule and subject to
normal payroll deductions and withholdings.
(f) Stock
Options. Employee shall be entitled to receive stock options or other
equity awards at the discretion of the Board of Directors.
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.
-2-
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 his Base Salary then
in effect for the remainder of the Employment Term or for twelve (12) 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 (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 Sections 6 and 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 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 Base 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.
-3-
(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 immediately 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 for an amount equal to his Base Salary
then in effect for the remainder of the Employment Term or for twelve (12)
months, whichever is longer.
(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 employment 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 COO (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; (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; or (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.
-4-
(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.
(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 Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended ("COBRA"), or any similar state health insurance
coverage continuation program, if applicable at Employee’s expense; provided
that Employee timely elects such continuation coverage and satisfies all
eligibility requirements for the receipt of such
benefits.
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.
-5-
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.
(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.
(b)
Definitions
(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 held company; or (ii) any activity engaged in with the prior
written approval of the Board of Directors of the Company.
-6-
(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.
(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.
-7-
(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, one (1) year 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.
(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.
-8-
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. Indemnification. The
Company and BCI shall indemnify, to the fullest extent permitted by law, and the
Company’s and BCI’s articles of incorporation and bylaws, 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:
00
Xxxxxx Xxx.
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.
-9-
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 Superior 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 an 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.
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.
-10-
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
|
|
-11-
