exv10w4



 





Exhibit 10.4




SEPARATION AGREEMENT AND GENERAL RELEASE




     This SEPARATION AGREEMENT AND GENERAL RELEASE (this “Agreement”) is hereby made
between Patrick G. Mackey (“EMPLOYEE”) and Berliner Communications, Inc. and its divisions,
affiliates, subsidiaries, predecessors, successors, assigns, related business entities, attorneys
and agents (collectively, “BCI”). Collectively, 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 January 1, 2006;



     WHEREAS, EMPLOYEE and BCI have agreed that EMPLOYEE’s employment will terminate by mutual
agreement effective as of the close of business on Friday, June 29, 2007 (the “Termination
Date”); and



     WHEREAS, EMPLOYEE and BCI have agreed to settle fully and finally any and all matters and/or
controversies 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, the receipt and
adequacy of which are hereby acknowledged, 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 $234,000.00
(which includes a car allowance of $9,000), less ordinary and customary withholdings including
EMPLOYEE’S withholdings for BCI’s 401(k) plan, for the four-month period ending on the Termination
Date (“Separation Period”). EMPLOYEE will receive the annual compensation continuation under the
same payroll schedule as active employees. EMPLOYEE shall also receive reimbursement by BCI for
all reasonable out-of-pocket business expenses (including monthly expense of cellular telephone)
properly incurred in connection with his employment prior to the Termination Date in accordance
with BCI’s normal reimbursement policies, and consistent with EMPLOYEE’s standard past practices.
BCI agrees that EMPLOYEE’S annual compensation will continue to Termination Date whether or not
EMPLOYEE accepts another position during the Separation Period. BCI agrees that benefits reference
in paragraph 2 to the extent not covered by EMPLOYEE’s new employer will continue to during
Separation Period.



2. Benefits: Employee will continue to receive all benefits (including payment of current
office space and administrative expenses) throughout the Separation Period 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, dental, and life insurance benefits (if EMPLOYEE
is currently enrolled in the BCI sponsored plan), in accordance with the federal COBRA law, at
EMPLOYEE’s expense. At EMPLOYEE’S option, EMPLOYEE may elect to continue to participate in BCI’s
401(k) plan, pursuant to the standard terms and conditions of such plan. In addition, BCI shall
pay EMPLOYEE a one-time amount of $5,000.00 to be used to assist EMPLOYEE with out-placement
service expenses.




 









 






3. Termination of Employment. EMPLOYEE acknowledges and agrees that (1) he will resign as
Principal Financial Officer and Senior Vice President of BCI and Berliner Communications, Inc. on
March 1, 2006 (BCI intends to file a Form 8-K as required by law within four business days
thereafter, and EMPLOYEE will be provided with an opportunity to review and comment on same), and
(2) continue as an employee until the Termination Date. 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 an
continuing obligations expressly provided for in this Agreement, such as the duty of
confidentiality.



4. Cooperation: EMPLOYEE agrees to cooperate with all reasonable requests for assistance,
at a mutually convenient time, made by BCI, at no additional charge, in connection with matters he
worked on while employed by BCI, including without limitation: (i) guidance with respect to the
preparation of the third quarter fiscal 2007 Report on Form 10-Q (with no certification
obligations), (ii) completion of all financial work related to Digitcom transaction, including post
closing integration assistance as required, (iii) assistance with closing CIT revolver, as needed,
(iv) documentation of all current responsibilities and creation of transition plan to BCI employees
in coordination with CEO and CFO (and closure of existing projects to the extent possible), (v)
documentation of files, organization of files and transfer to BCI as part of transition plan and
(vi) continued general availability throughout the Separation Period on a diminishing basis until
the Termination Date.



5. Equipment and Property: EMPLOYEE agrees to promptly return to BCI all BCI property
including, but not limited to, any and all computers (laptops or desktops), cellular telephone,
Blackberry (or similar personal assistant device), BCI identification cards, card key passes,
corporate credit cards, corporate phone cards, files, memoranda, keys, any other hardware and/or
software that is in his possession, and he agrees that he will not retain any duplicates or
reproductions of such items unless agreed to by BCI in writing.



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 present and former officers, directors, agents, employees,
predecessors, successors, assigns and representatives (whether any of the aforementioned
individuals were acting as agents for BCI or in their individual capacities) (the
“Company”), from any and all claims and causes of action (except actions brought to obtain
benefits specifically set forth in this Agreement) including, but not limited to, claims related to
EMPLOYEE’s employment or separation from employment; any claims for salary, bonuses, severance pay,
vacation pay or any claims under ERISA; any claim under New Jersey’s Wage and Hour Laws; any claim
under the Worker Adjustment and Retraining Notification Act, any claim alleging sexual or other
harassment, or discrimination based on race, color, national origin, ancestry, age, religion,
marital status, sex, sexual orientation, citizenship status, medical condition, handicap or
disability (as defined by the Americans with Disabilities Act or any state or local law), or any
other unlawful discrimination (under Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act, the Equal Pay Act, the New Jersey Law Against Discrimination, or
any other federal, state, or local laws); discharge in violation of New Jersey’s Conscientious
Employee Protection Act or other state or federal “whistle blower” laws; discharge in violation of
the federal Family and Medical Leave



 









 






Act, the New Jersey Family Leave Act or other state or federal family leave laws; breach of
implied or express contract, breach of promises, misrepresentation, negligence, fraud, estoppel,
defamation, infliction of emotional distress, violation of public policy, retaliatory discharge,
wrongful or constructive discharge, retaliation, intentional tort or for attorneys’ fees, which
EMPLOYEE, his heirs, executors, administrators, successors, and assigns now have, ever had or may
hereafter have, whether known or unknown, suspected or unsuspected, up to and including the
Termination Date.



     6.2 EMPLOYEE, for himself and his heirs, executors, administrators, personal representatives
and members of his immediate family, also hereby waives all rights to file any charges or
complaints arising out of his employment with or separation from the Company on his own behalf
against the Company before any federal, state or local administrative agency, except where such
waivers are prohibited by law. EMPLOYEE further waives all rights to recover any damages or
equitable or other relief in any claim or suit brought by or through the Equal Employment
Opportunity Commission, or any other federal, state or local agency on his behalf: under the Age
Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act of 1990,
under Title VII of the Civil Rights Act of 1964, as amended; the Americans with Disabilities Act;
the Equal Pay Act; the New Jersey Law Against Discrimination; or any other federal, state, or local
discrimination law; except where such waiver is prohibited by law.



     6.3 Intentionally omitted.



     6.4 EMPLOYEE agrees to indemnify and hold harmless BCI from and against any and all direct or
indirect costs, expenses and attorneys’ fees incurred as a result of his breach of this Section
6.



     6.5 EMPLOYEE further agrees that the releases contained in Sections 9.0 below shall
survive in the event of a breach by EMPLOYEE.



     6.6 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.


7. No Admission of Liability: The making of this Agreement and anything contained herein
is not intended, and shall not be construed, as an admission that BCI or EMPLOYEE has violated or
abridged any federal, state or local law (statutory or common law), ordinance or regulation;
breached any contract; or violated any right or obligation that is may owe or may have owed to
EMPLOYEE or BCI (as the case may be), or committed any wrong whatsoever against EMPLOYEE or BCI (as
the case may be).



8. Confidentiality of Agreement: The Parties agree that the terms and conditions of this
Agreement, including the discussions and correspondence that led to this Agreement are
confidential. EMPLOYEE represents that neither he nor any attorney he may have retained to review
this Agreement, have disclosed the terms or conditions of this Agreement to anyone, except as
permitted pursuant to this Section 8. Except as may be required by law, neither EMPLOYEE
nor his attorneys may disclose the terms and conditions of this Agreement to any other person or
entity, except that EMPLOYEE may disclose the provisions of this Agreement to his immediate family
and financial advisors. If subpoenaed to appear in any civil or criminal litigation, or by any


 









 





governmental authority, to testify as to the contents of this Agreement, EMPLOYEE agrees to, within
three (3) business days after receipt of such subpoena, forward a copy of the subpoena to the Chief
Executive Officer of BCI and to notify the proponent of the subpoena that this Agreement is the
subject of a Confidentiality Agreement. BCI may disclose the terms and conditions of this
Agreement to its respective officers, directors, employees, accountants and counsel who have a
business need to know, and as required by law. EMPLOYEE further agrees that he will not encourage
others who are not parties to this Agreement to demand any disclosure of the terms and conditions
of this Agreement.



9. Non-Disclosure Obligations:





	 	(a)	 	EMPLOYEE hereby covenants and agrees that he shall not, without
the express written consent of the CEO of BCI:






	 	(i)	 	use or disclose any Confidential Information,
however acquired. As referred to in this Agreement, “Confidential
Information” shall mean technical and business 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, all periods of employment with any
predecessor of BCI) including, without limitation, any trade secrets,
its customer lists, prospective customers, rates, card sales
information, contractors and sub-contractors lists, distributor and
sub-distributor agreements, financial information, computer programs,
object code, source code, specifications, flow charts and other data,
services, vendors, processes, methods, knowledge, research, development,
product or service plans, licenses and other agreements, marketing and
business plans, business partners or affiliates, designs, costs, pricing
strategy, business models, competitive strategy, marketing plans,
business opportunities, personnel, research and development activities,
know-how, pre-release products, or other information of a confidential
and proprietary nature and all summaries, reports and analyses which
contain or reflect such information, and various other financial and
business information of BCI;
	 
	 	(ii)	 	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
	 
	 	(iii)	 	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.




 









 











	 	(b)	 	EMPLOYEE hereby agrees to promptly return to BCI all tangible
materials and all copies thereof, in whatever media, in his possession or
control, containing or employing any Confidential Information relating to BCI or
any of its subsidiaries.




10. Non-Compete and Non-Solicitation Obligations. EMPLOYEE acknowledges and agrees that:





	 	(a)	 	For a period of two (2) years immediately following the Effective Date, except
upon the express written consent of BCI, EMPLOYEE hereby covenants and agrees that he
shall not, directly or indirectly:






	 	(i)	 	influence or attempt to, or assist or advise any
person attempting to, influence customers, distributors, partners or
suppliers of BCI (x) to divert any part of their business away from BCI,
(y) to cause damage to the business of BCI, or (z) to do any material
business with any competitor of BCI; or
	 
	 	(ii)	 	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.






	 	(b)	 	For a period ending June 29, 2007, will not engage in Competition, as such term is
defined in the Employment Agreement dated January 1, 2006.




The parties hereto agree that the provisions of this Section 10 supersede and replace any
and all prior non-compete, non-disclosure, and non-solicitation agreements between EMPLOYEE and BCI
notwithstanding any survival clauses therein contained (except to the extent relied upon to define
Competition and the parameters thereof). The parties further agree that the provisions of this
Section 10 shall be interpreted as broadly as possible to enforce such provisions;
provided, however, that in the event that any provision of this Section 10
is held invalid or unenforceable or are 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.



11. Non-Disparagement: The Parties hereto agree that they will not at any time, in any
way, disparage the other, (and EMPLOYEE agrees that this includes any individuals associated with
the Company) by making or soliciting any comments, statements or the like to the media or to
others, either orally or in writing, that may be considered to be derogatory or detrimental, in any
way, to the good name or business reputation of the EMPLOYEE or the Company. The Parties hereto
further agree that they will not engage in any conduct that is in any way injurious, or may be
perceived to be injurious, to the other’s reputation or interest (other than normal competitive
process not in violation of this Agreement), including, but not limited to, encouraging or
assisting others to bring any form of suit, claim or cause of action against the other in any
forum.




 









 






12. Breach: The Parties agree and acknowledge that if they breach any representation,
covenant, promise or undertaking made pursuant to this Agreement, EMPLOYEE and BCI are authorized
to pursue all rights and remedies available in law or in equity, which rights and remedies, in the
event of a material breach hereunder (which, if curable, has not been cured within ten (10) days of
EMPLOYEE’s or BCI’s receipt of written notification from the other party with respect to such
breach).



13. Representations and Warranties:




     13.1 BCI represents that it has the authority to enter into this Agreement and that it has
obtained the necessary corporate approvals to do so.



     13.2 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.


14. Indemnification. The Company will continue to indemnify you to the same extent you
were and have been covered by the indemnification provisions of the Company’s articles of
incorporation and bylaws until the end of the Termination Date, and thereafter to the same extent
other officers would be covered for prior actions after termination of employment.



15. 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; provided that, upon a finding by a court or agency of competent jurisdiction
that the release of claims contained in Section 6 above, is illegal, void or unenforceable,
the Parties agree that, at the request of the other, as the case may be, the party involved will
execute a release covering all the same claims as are released under Section 6 above, that
is legal and enforceable.



16. Prior Agreements Superceded; No Oral Modification: This Agreement constitutes the
complete understanding between the Parties and supersedes any and all prior agreements between the
parties. EMPLOYEE acknowledges that neither BCI nor any representative of BCI has made any
representation or promises to him other than as set forth herein. This Agreement may not be
modified except in a writing signed by both EMPLOYEE and the CEO of BCI.



17. No Assignment of Claims: Each of the parties represents and warrants that it has not
assigned or transferred any of the claims released under this Agreement, or any portion of or
interest in any such claims, to any other individual, firm, or other entity.



18. Arbitration: Any dispute arising out of or relating to this Agreement, shall be
finally determined by arbitration in the State of New Jersey in accordance with the employment
arbitration rules of the American Arbitration Association. The results of any such arbitration
shall be final and binding upon the parties hereto, and any party may enforce any arbitration award
in any court of competent jurisdiction. The prevailing party as determined by the trier of fact
shall be entitled to


 









 





recover all of its reasonable attorneys’ fees and legal costs incurred in connection with the
arbitration.



19. 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.



20. Counterparts: This Agreement may be executed in counterparts, each of which shall be
deemed an original. Facsimile signatures shall be deemed effective if subsequently followed by
handwritten signatures.



21. 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. The subheadings
in this Agreement are for convenience only and shall not affect the interpretation of the
substantive terms of this Agreement.



22. 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:



	 	 	 	 	 
	 	Berliner Communications, Inc. 

 	 
	 	Signature: 	/s/ Rich Berliner

	 	 	 
	Dated: March 1, 2007 	By: Rich Berliner 
	 
	 	 	 
	 	Title: Chief Executive Officer 	 
	 


I HAVE READ AND UNDERSTOOD THIS AGREEMENT, INCLUDING THE GENERAL RELEASE OF ALL CLAIMS CONTAINED IN
SECTION 6, AND AM IN AGREEMENT WITH ITS TERMS.





	 	 	 
	Dated: March 1, 2007
	 
	 	 
	 

	 	/s/ Patrick G. Mackey
	 

	 	 
	 

	 	Patrick G. Mackey
	 
	 	 
	Berliner Communications, Inc.
	 
	 	 
	Signature:

	 	/s/ Rich Berliner
	 

	 	 
	 
	 	 
	By: Rich Berliner
	Title: Chief Executive Officer