exv10w7



 





Exhibit 10.7




EXECUTION COPY




EMPLOYMENT AGREEMENT




          THIS AGREEMENT entered into as of the 3rd day of March, 2004, by and between BridgeCom
Holdings, Inc. (the “Company”), and Corey Rinker, an individual (the “Executive”) (hereinafter
collectively referred to as the “parties”).




          WHEREAS, the Company, MCG Capital Corporation, a Delaware corporation, Telecomm North Corp., a
Delaware corporation, and certain stockholders of the Company are parties to an Agreement and Plan
of Merger, dated as of November 26, 2003 (the “Merger Agreement”);




          WHEREAS, the Company is engaged in the business of providing telecommunications, Internet and
related products and services in the States of New York, New Jersey and certain other states;




          WHEREAS, the Executive has heretofore been employed by the Company and/or its subsidiaries as
its Chief Financial Officer and the Company desires to retain the services of the Executive on the
terms set forth herein;




          WHEREAS, to the extent that the Executive and the Company and/or its subsidiaries have
previously entered into an agreement providing for certain severance arrangements and other terms
of employment (the “Prior Employment Agreement”), the Company and the Executive agree that this
Agreement shall replace and supersede the Prior Employment Agreement;




          WHEREAS, in order to induce the Executive to remain in the employ of the Company, the Company
desires by this writing to set forth the continued employment relationship of the Executive with
the Company.




          NOW, THEREFORE, in consideration of the respective agreements of the parties contained herein,
it is agreed as follows:




          1. Term. The initial term of employment under this Agreement shall be for the
period commencing on the Closing Date (as defined in the Merger Agreement), and ending on the first
anniversary thereof; provided, however, that the term of this Agreement shall be
extended for one (1) year at the end of the initial term and on each anniversary thereafter unless
the Company shall have given written notice to the Executive at least sixty (60) days prior thereto
that the term of this Agreement shall not be so extended; and provided, further,
that if the Company does not extend the term of this Agreement following the expiration of the
initial term or any renewal term, the Executive shall be terminated following the expiration of
such initial term or renewal term; and provided, further, that this Agreement shall
not become effective prior to eight (8) days following the execution by the Executive of a general
release of,




 









 







and waiver of claims against, the Company and its subsidiaries, affiliates, directors,
officers, employees and agents in a form attached hereto as Exhibit A.




          2. Employment, (a) The Executive shall be employed as the Chief
Financial Officer of the Company or in such other capacity for the Company and its
subsidiaries and affiliates as may be mutually agreed to by the parties, and shall provide
such services to the Company and its subsidiaries and affiliates as the Company may
reasonably request. The Executive shall report to the Chief Executive Officer (the
“CEO”) of the Company. The Executive agrees to perform faithfully, industriously, and
to the best of the Executive’s ability, experience, and talents, all of the duties,
responsibilities and exercise the authority customarily performed, undertaken and
exercised by an employee situated in a similar position and to the reasonable
satisfaction of the CEO or the Board of Directors of the Company (the “Board”).
Subject to the following paragraph, such duties shall be provided at such places as the
needs, business, or opportunities of the Company and its subsidiaries and affiliates may
require from time to time.




          The Executive shall arrange his affairs and lifestyle so that he can perform his duties from
the Company’s offices currently located at 115 Stevens Avenue, Valhalla, New York or at office
facilities at such other locations approved by the CEO within a forty-five (45) mile radius of the
Company’s offices in Valhalla (the “Valhalla 45-Mile Radius”). If the Executive fails to continue
to perform his duties at a location within the Valhalla 45-Mile Radius, this Agreement shall be
deemed terminated for cause by the Company.




               (b) Excluding periods of personal leave days to which the Executive is entitled,
the Executive agrees to devote reasonable attention and time during usual business hours to
the business and affairs of the Company to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder.



          3. Base Salary. The Company agrees to pay or cause to be paid to the Executive during
the initial term of this Agreement and any subsequent renewal terms, a base salary at the rate of
$260,000 per annum or such other greater amount as the Board may from time to time determine
(hereinafter referred to as the “Base Salary”). Such Base Salary shall be payable in accordance
with the Company’s customary practices applicable to its executives.




          4. Annual Bonus. The Board, in its sole discretion, shall set the target(s) and
cash bonus amount(s) for each fiscal year.




          5. Stock Options. As soon as practicable following the Closing Date, the Executive
will receive a grant of a Non-Qualified Stock Option (the “Stock Option”) to purchase seven
thousand three hundred and thirty eight (7,338) shares of the common




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stock of Holdings under the Holdings 2004 Stock Incentive Plan established by Holdings
after the Closing Date.




          6. Employee Benefits. The Executive shall be entitled to participate in all employee
benefit plans, practices and programs maintained by the Company and made available to employees
generally. The Executive’s participation in such plans, practices and programs shall be on the same
basis and terms as are applicable to employees of the Company generally.




          7. Executive Benefits. The Executive shall be entitled to participate in all executive
benefit or incentive compensation plans now maintained or hereafter established by the Company for
the purpose of providing compensation and/or benefits to executives of the Company. Unless
otherwise provided herein, the Executive’s participation in such plans shall be on the same basis
and terms as other similarly situated executives of the Company. No additional compensation
provided under any of such plans shall be deemed to modify or otherwise affect the terms of this
Agreement or any of the Executive’s entitlements hereunder.




          8. Expenses. The Executive shall be entitled to receive reimbursement of all
reasonably incurred expenses in connection with the performance of his duties hereunder or for
promoting, pursuing or otherwise furthering the business or interests of the Company, provided,
that, such expenses are in accordance with the Company’s policies and procedures.




          9. Personal Leave Days. The Executive shall be entitled to not less than four
(4) weeks of personal leave days per year, at such reasonable times as the Board shall in its
discretion permit.




          10. Termination. The Executive’s employment hereunder may be terminated under
the following circumstances:




               (a) Disability. The Company may terminate the Executive’s employment after having
established the Executive’s Disability. For purposes of this Agreement, “Disability” means a
physical or mental infirmity which impairs the Executive’s ability to substantially perform his
duties under this Agreement and which continues for a total of at least ninety (90) days (exclusive
of personal leave days) in a one-hundred eighty (180) day period. The Executive shall be entitled
to the compensation and benefits provided for under this Agreement for any period during the term
of this Agreement and prior to the establishment of the Executive’s Disability during which the
Executive is unable to work due to a physical or mental infirmity.



               (b) Cause. The Company may terminate the Executive’s employment for
“Cause.” A termination for Cause shall mean discharge by the



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Company by reason of the following: (1) The Executive’s conviction of, or a plea of nolo
contendere to, any act which constitutes a felony offense under applicable law in connection with
the performance of the Executive’s obligations on behalf of the Company or which affects the
Executive’s ability to perform the Executive’s obligations as an employee of the Company or under
any employment agreement, non-competition agreement, confidentiality agreement or like agreement
or covenant between the Executive and the Company or which materially and adversely affects the reputation and business
activities of the Company; (2) the Executive’s willful misconduct in connection with the
performance of the Executive’s duties and responsibilities as an employee of the Company; (3) the
Executive’s commission of an act of embezzlement, fraud or dishonesty which results in a loss,
damage or injury to the Company; (4) the Executive’s substantial and continuing gross negligence in
the performance of the Executive’s duties as an employee of the Company; (5) the Executive’s
knowing unauthorized use or unauthorized disclosure of any trade secret or confidential information
of the Company which adversely affects the business of the Company; provided, that any disclosure
of any trade secret or confidential information of the Company to a third party in the ordinary
course of business who signs a confidentiality agreement shall not be deemed a breach of this
subsection; (6) substance or alcohol abuse for which the Executive fails to undertake and maintain
treatment within five (5) days after requested by the Company; (7) the Executive’s continuing
material failure or refusal to perform the Executive’s duties in accordance with the terms of this
Agreement; provided, that discharge pursuant to this subsection shall constitute discharge for
cause only if the Executive has first received written notice from the President of the Company
stating with specificity the nature of such failure or refusal and, if requested by the Executive
within five (5) days thereafter, the Executive is afforded a reasonable opportunity to be heard
before the Board; or (8) the Executive breaches a material provision of this Agreement.




               (c) Notice of Termination. Any purported termination by the
Company or by the Executive shall be communicated by written Notice of Termination to the
other. For purposes of this Agreement, a “Notice of Termination” shall mean a notice which
indicates the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision so indicated. For purposes of
this Agreement, no such purported termination of employment shall be effective without such
Notice of Termination.



          (d) Termination Date, Etc. “Termination Date” shall mean in the
case of the Executive’s death, his date of death, or in all other cases, the date specified
in the Notice of Termination subject to the following:





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                    (1) If the Executive’s employment is terminated by the
Company for Cause or due to Disability, the date specified in the Notice of Termination given
to the Executive; and



                    (2) If the Executive’s employment is terminated by the
Executive, the date specified in the Notice of Termination shall not be less than fifteen
(15) days and more than thirty (30) days from the date the Notice of Termination is
given to the Company.



          11. Compensation Upon Termination. Upon termination of the Executive’s
employment during the term of this Agreement, the Executive shall be entitled to the
following benefits:




               (a) If the Executive’s employment is terminated by the Company for Cause or Disability or by
the Executive, or by reason of the Executive’s death, the Company shall pay the Executive all
amounts earned or accrued hereunder through the Termination Date but not paid as of the
Termination Date, including (i) Base Salary, (ii) reimbursement for any and all monies advanced or
expenses incurred in connection with the Executive’s employment for reasonable and necessary
expenses incurred by the Executive on behalf of the Company for the period ending on the
Termination Date, (iii) vacation pay, (iv) any unpaid bonuses or incentive compensation related to
the prior fiscal year and (v) any previous compensation which the Executive has previously
deferred (including any interest earned or credited thereon) (collectively, “Accrued
Compensation”). The Executive’s entitlement to any other compensation or benefits shall be
determined in accordance with the Company’s employee benefit plans and other applicable programs
and practices then in effect.



               (b) If the Executive’s employment by the Company shall be terminated by the Company other
than for Cause, death or Disability, or if the Company fails to extend the Agreement following the
expiration of the initial term or any subsequent renewal term, then the Executive shall be
entitled to the benefits provided below:



                    (1) the Company shall pay the Executive all Accrued Compensation; and



                    (2) provided that the Executive shall have executed a general release of, and waiver of
claims against, the Company and its subsidiaries, affiliates, directors, officers, employees and
agents in a form attached hereto as Exhibit B and that such release is effective, the Company
shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent
to the Termination Date, an amount in cash equal to 100% of Base Salary.



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               (c) The amounts provided for in Sections 11(a) and 11(b)(1) shall
be paid within fifteen (15) business days after the Termination Date and the amounts
provided for in Section 11(b)(2) shall be paid ratably in accordance with the Company’s customary
practices with respect to Base Salary over the twelve (12) month period immediately following the
Termination Date.



               (d) The Executive shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment or otherwise
and no such payment shall be offset or reduced by the amount of any compensation or
benefits provided to the Executive in any subsequent employment.



          12. Employee Covenants.




               (a) Confidential Information. (1) The Executive hereby recognizes and
acknowledges that, in and as a result of the provision of services to the Company, he will
receive, and previously has received, confidential and proprietary information of and regarding
the Company, its business activities and the business activities of the Company’s subsidiaries and
affiliates. Accordingly, as a material inducement for the Company to enter into this Agreement and
in consideration of Executive’s retention and the payment to the Executive of the compensation
herein, the Executive hereby agrees to hold in strictest confidence and not to use for his own
benefit or that of any third party or to intentionally or negligently publish or disclose,
directly or indirectly, in a manner which could be harmful to the Company or its subsidiaries and
affiliates, any “Confidential Information.” For purposes of this Agreement, intending that the
term shall be broadly construed to include anything that may be protected as a trade secret under
applicable law, “Confidential Information” shall mean all information, whether communicated in
writing, electronically, orally or otherwise, and all documents and other tangible materials which
record information, relating to the operation, financial status, business, product development,
marketing/promotional activities, contractual relationships with customers and suppliers,
relationships with directors, officers and employees, or internal policies and procedures of the
Company, which has been or is from time to time created or learned by, disclosed to or known by
the Executive as a consequence of his service to the Company, whether or not pursuant to this
Agreement.



                    (2) The restrictions on disclosure by the Executive of Confidential Information shall
not apply to (i) information which at the time of disclosure was generally available to the
public; (ii) information which is published or otherwise becomes available to the public through
means other than an act or omission of the Executive; or (iii) information which was previously
known to the Executive free of any obligation to keep it confidential. Notwithstanding anything to
the contrary herein, Executive may disclose Confidential Information (i) if required to do so by
law, or (ii) if ordered to do so by a court or other governmental authority of competent



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jurisdiction; provided, however, that the Executive shall, unless prohibited from so doing,
provide the Company prior written notice of any such mandated disclosure and afford the
Company an opportunity to-contest the disclosure and to itself limit the extent
of the disclosure to the maximum extent practicable.




                    (3) Confidential Information disclosed to the Executive is and shall remain the
property of the Company. By disclosing Confidential Information to the Executive, the Company does not relinquish any of its proprietary rights and
interests therein and hereby specifically reserve all such proprietary rights and interests to
said Confidential Information. The Executive shall return, or, at the sole discretion of the
Company, destroy, all Confidential Information and all copies thereof, including,
Without limitation, written and electronic copies, as well as all summaries, notes, memoranda,
plans, records, reports, computer tapes, printouts and software or other documents, materials
or things containing Confidential Information, to the Company upon the termination of this
Agreement or promptly upon the written request of the Company for any reason and at any other
time.



               (b) Inventions and Patents. The Executive acknowledges that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings, reports and all
similar or related information (whether patentable or not) which relate to the actual or
anticipated business, research and development or existing or future products or services of the
Company and its subsidiaries and affiliates and which are conceived, developed or made by him
solely or jointly with others during the term of the Agreement (“Work Product”) belong to the
Company. The Executive shall promptly disclose such Work Product to the Board and perform all
actions reasonably requested by the Board (whether during or after the term of the Agreement) to
establish and confirm such ownership (including, without limitation, assignments, powers of
attorney and other instruments) without additional compensation to the Executive.



               (c) Non-Competition. In consideration of the compensation to be paid to the Executive
hereunder, the Executive agrees that:




          (i) during the period beginning on the Closing Date and ending twelve (12)
months following the Termination Date (the “Non-Competition Period”), he shall not,
whether individually or in his capacity as a director, officer, manager, member,
partner, shareholder, employee, consultant, agent or representative of or to a
person or entity engage directly or indirectly in any business engaged in the
provision of the telecommunications services or other services provided by the
Company or any of their subsidiaries and downstream affiliates as of the Closing
Date or at any time during the term of the Agreement in any state in which the
Company or any of its subsidiaries and downstream affiliates provided such services
to the extent such services in each such state accounted for greater



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than one percent (1%) of the Company’s revenues; provided, however, that ownership
of less than one percent (1%) of the outstanding stock of any publicly-traded
corporation shall not be deemed to violate this subsection; and




          (ii) during the period starting on the Closing Date and ending on the second
anniversary of the Termination Date, the Executive shall not
(A) whether individually or in his capacity as a director, officer, manager,
member, partner, shareholder, employee, consultant, agent or representative
of or to a person or entity, solicit or otherwise endeavor to entice away, any
person or entity who, during the term of the Agreement and at any time
during me six (6) months prior to the termination of the Executive’s
services hereunder, is or was an officer, employee, sales agent, consultant, customer
or supplier of the Company or its subsidiaries and affiliates, or
(B) either directly or indirectly, alone or in conjunction with another party,
interfere with or harm, or attempt to interfere with or harm, the relationship
of the Company or its subsidiaries and affiliates (including the termination
of such relationship or causing the purchase of services from a competitor)
with any person or entity who, during the term of the Agreement, and at
any time during the six (6) months prior to the termination of the
Executive’s services hereunder, is or was a current or prospective employee,
sales agent, consultant, customer or supplier of the Company or its
subsidiaries and affiliates or otherwise had a business relationship with the
Company or its subsidiaries and affiliates other than the Executive’s
secretary/administrative assistant.



               (d) Nondisparagement; Cooperation. The Executive shall not, at any time during his
employment with the Company or thereafter, make any public or private statement to the news media,
to any Company competitor or client, or to any other individual or entity, if such statement would
disparage any of the Company, any of their respective businesses or any director or officer of any
of them or such businesses or would have a deleterious effect upon the interests of any of such
businesses or the stockholders or other owners of any of them; provided, however,
that the Executive shall not be in breach of this restriction if such statements consist solely of
private statements made to any officers, directors or employees of the Company by the Executive in
the course of carrying out his duties pursuant to this Agreement or, to the extent applicable, his
duties as a director or officer; and provided further that nothing contained in this Section 12(d)
or in any other provision of this Agreement shall preclude the Executive from making any statement
in good faith that is required by law, regulation or order of any court or regulatory commission,
department or agency.



               (e) The parties hereto agree that the Company would suffer irreparable harm from a breach by
the Executive of any of the covenants or agreements



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contained herein and that money damages would not be an adequate remedy for any such
breach. In the event of a breach or threatened breach by the Executive of any of
the provisions of this Section 12, the Company or its successors or assigns, in addition
to all other rights and remedies existing in its favor, shall be entitled to specific
performance and/or injunctive or other equitable relief from any court of competent
jurisdiction in order to enforce or prevent any violations of the provisions hereof
without posting any bond or other security.




               (f) The Executive recognizes, acknowledges and agrees that the
terms and conditions of this Section 12 are reasonable and properly required for the
adequate protection of the Company’s business, and do not preclude the Executive from
pursuing the Executive’s livelihood.



               (g) If, at the time of enforcement of any of the provisions of this
Section 12, a court holds that the restrictions stated therein are unreasonable under the
circumstances then existing, the parties hereto agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted for the
stated period, scope or area.



               (h) The Executive agrees that the covenants made in Section 12 shall each be construed
as an agreement independent of any other provision of this Agreement and each shall survive any
order of a court of competent jurisdiction terminating any other provision of this Agreement.



          13. Entire Agreement. No agreement or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have been made
by either party which are not expressly set forth in this Agreement. This Agreement
contains the complete agreement between the parties hereto and supersedes any prior
understandings, agreements or representations by or between the parties, written or oral,
which may have related to the subject matter hereof in any way. The parties agree that
neither the Company nor the Executive has any further obligations under the Prior
Employment Agreement and that the Executive shall not be entitled to any further
benefits under the Prior Employment Agreement. The Executive agrees to release the
Company from any claims the Executive may have regarding compensation or benefits
arising out of the Prior Employment Agreement.




          14. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Company and their affiliates, successors and assigns and shall
be binding upon and inure to the benefit of the Executive and his legal representatives
and assigns; provided that in no event shall the Executive’s obligations to perform
future services for the Company be delegated or transferred by the Executive without
the prior written consent of the Company (which consent may be withheld in their sole
discretion). It is not the intent of the parties that there be any third party beneficiaries
of





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this Agreement, except as expressly provided in this Agreement. The Company may assign or
transfer their rights hereunder to any of their affiliates or to a successor corporation in the
event of merger, consolidation or transfer or sale of all or substantially all of the assets of the Company.




          15. Amendment and Waiver. Any provision of this Agreement may be
amended, waived or terminated only in writing and signed by the Company and the
Executive. No waiver of any provision hereunder or any breach or default thereof
shall extend to or affect in any way any other provision or prior or subsequent breach or
default. No course of dealing between the parties shall be deemed to affect or to
modify, amend or discharge any provision or term of this Agreement. No delay on the part of
the Company or the Executive in the exercise of any of their respective rights or remedies
shall operate as a waiver thereof, and no single or partial exercise by the Company or the
Executive of any such right or remedy shall preclude other or further exercises thereof. A
waiver of right or remedy on any one occasion, or with regard to one provision, shall not be
construed as a bar to, or waiver of, any such right or remedy on any other occasion or with
regard to any other provision.




          16. Governing Law. All matters relating to the interpretation, construction, validity
and enforcement of this Agreement shall be governed by and construed in accordance with the
domestic laws of the State of New York without giving effect to any choice or conflict of law
provision or rule (whether of the State of New York or any other jurisdiction) that would cause
the application of laws of any jurisdiction other than the State of New York.




          17. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining
provisions of this Agreement; provided, that if a court having competent jurisdiction shall
find that the covenant contained in Sections 12 hereof is not reasonable, such court shall
have the power to reduce the duration and/or geographic area and/or scope of such covenant,
and the covenant shall be enforceable in this reduced form.




          18. Jury Trial. Each of the parties hereto herby irrevocably waives all rights to
trial by jury in any action, proceeding or counterclaim arising out of or relating to this
Agreement.




          19. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.





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          20. Notice. All notices, demands and other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b)
three (3) days after sent by e-mail (with such communication to be in PDF format), with electronic
confirmation of sending, provided that a copy is sent on the same day by registered mail, return
receipt requested, in each case to the appropriate mailing and e-mail addresses set forth below (or
to such other mailing and e-mail addresses as either party may designate by notice to the other
party in accordance with this provision), or (c) when actually delivered if sent by any other
method that results in delivery (with written confirmation of receipt):



Notices to Holdings:



BridgeCom Holdings, Inc.

115 Stevens Avenue

3rd Floor

Valhalla, New York 10595

Attention: Charles Hunter

Phone: (914) 468-8214

Facsimile: (914) 742-5818

Email: notices@bridgecom.com



with copies to:



MCG Capital Corporation

1100 Wilson Boulevard, Suite 3000

Arlington, Virginia 22209

Attention: President, Investment Administration and General Counsel

Phone: (703) 247-7500

Facsimile: (703) 247-7545

Email: srubenstein@mcgcapital.com



Notices to Executive:



Corey Rinker

112 Stonewall Circle

West Harrison, New York 10604

Phone: (914) 419-3993

Facsimile: (914) 993-5007

Email: crinker@bridgecom.com




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          21. Captions. The headings and captions used in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. The use of the word “including” herein means “including without limitation.”




          22. Counterparts. This Agreement may be executed in multiple
counterparts, any one of which need not contain the signatures of more than one party,
but all such counterparts taken together shall constitute one and the same instrument.





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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.




	 	 	 	 	 
	COMPANY:

 	 	 
	BRIDGECOM HOLDINGS, INC.

 	 	 
	By: 	/s/ Dana Stern 	 	 
	 	Name: 	Dana Stern
 	 	 
	 	Its: 	
Vice President 	 	 
	 
	THE EXECUTIVE

 	 	 
	/s/ Corey Rinker
 	 	 
	Corey Rinker 	 	 
	 	 	 
	 




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