Unassociated Document


     

    EMPLOYMENT
      AGREEMENT

     

    EMPLOYMENT
      AGREEMENT (this “Agreement”), dated November 15, 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 20 Bushes Lane,
      Elmwood Park, New Jersey 07407, and Raymond A. Cardonne, Jr. (the “Employee”),
      an individual residing at 81 Katydid Dr., Branchburg, NJ 08876. 

    


    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 Financial Officer and Treasurer 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, 2010 (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 Financial Officer (“CFO”)
      and Treasurer of the Company and shall report to the Chief Executive Officer.
      Employee shall have such powers and duties as are commensurate with such
      positions 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 CFO and Treasurer 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.
      For fiscal 2008, this bonus will be pro rated for the portion of the fiscal
      year
      Employee served with the Company. The fiscal 2008 bonus will be based on the
      following factors:

    


    
      	·  	
              50%
                will be based on the Company achieving no less than $3.5 million
                in EBITDA
                for the fiscal year; and

            


    

    
      	·  	
              50%
                will be based upon the Employee’s personal performance, as determined by
                the CEO and Compensation Committee according to criteria to be established
                in consultation with Employee.

            


    

    


    The
      Company’s expectation is that, if the above referenced EBITDA target is
      achieved, and if Employee’s personal performance merits it, Employee will
      receive a cash bonus of no less than thirty percent (30%) of Employee’s base
      salary paid during the 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.

     

    
      
        
        

      

      
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    (f)  Stock
      Options. Employee shall receive options to purchase one hundred thousand
      (100,000) shares of the Company’s common stock pursuant to the Company’s Stock
      Option Award Policy. The options are subject to the terms and conditions of
      the
      Company’s Omnibus
      Securities Plan, and any amendments thereto. The options shall vest equally
      over
      a four year period, 25% per year on the anniversary date of the date of the
      Effective Date.

     

    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.

     

    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 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, Ddisability
      (as
      hereinafter 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.

    


    
      
        
        

      

      
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    (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-solicitation. 

    


    (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 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.
      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 exercise, as applicable, any such
      equity awards to the full extent not yet converted, claimed or exercised,
      (including any installments which have not yet become vested or
      exercisable).

     

    
      
        
        

      

      
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    (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.

    


    (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 Employees position as Chief Financial 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.

     

    
      
        
        

      

      
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    (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, and his
      eligible dependents, shall 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.

     

    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.

     

    
      
        
        

      

      
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    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 help company; or (ii) any activity engaged in with the
      prior
      written approval of the Board of Directors of the Company.

     

    
      
        
        

      

      
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    (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.

     

    
      
        
        

      

      
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    (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.

    


    (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. 

     

    
      
        
        

      

      
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    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,
      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:

    


    Berliner
      Communications Inc.

    20
      Bushes Lane

    Elmwood
      Park, New Jersey 07407

    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.

     

    
      
        
        

      

      
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    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 execut-ed 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.
      

     

    
      
        
        

      

      
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    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/ Rich
              Berliner
	 	
              
Rich
              Berliner
	 	Chief
              Executive Officer


      	 	 	 
	 	EMPLOYEE
	 
 	 
 	 
 
	
            	By:  	/s/ Raymond
              A. Cardonne, Jr.
	 	
              
Raymond
              A. Cardonne, Jr.
	 	 

And
      with
      respect to the obligation to Indemnify as set forth in Section 11:

    


    BCI
      Communications, Inc.

    


    


    By:  
      /s/ Rich
      Berliner               


    Rich
      Berliner

    Chief
      Executive Officer

    


    
      
        
        

      

      
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