BARRISTER GLOBAL SERVICES NETWORK, INC.
EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS AGREEMENT, executed as of the 19th day of December, 2001, by and
between Xxxxxxx X. Xxxx (hereinafter called "Employee") residing at 0 Xxxxxxxx
Xxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxxx 00000, and Barrister Global Services Network,
Inc., a Delaware corporation, having its office and principal place of business
at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000, (hereinafter "Barrister") (the
"Parties").
WITNESSETH:
WHEREAS, Barrister desires to retain the services of Employee as an
executive officer of Barrister; and
WHEREAS, Barrister and the Employee desire to enter into this Agreement
to set forth the terms and conditions of the employment relationship between
Barrister and the Employee;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties intending to be legally
bound hereto agree as follows:
1. Term of Employment. Barrister hereby employs Employee and
Employee agrees to work for Barrister for a period of approximately five years
beginning January 7, 2002 and ending December 31, 2006 ("Employment Term"),
which shall expire after December 31, 2006, unless extended in writing by both
Barrister and Employee or earlier terminated pursuant to the terms and
conditions set forth in this Agreement.
2. Duties and Responsibilities. Employee shall perform all duties
incident to the position of Chief Executive Officer and President, as well as
any other duties as may from time to time be assigned by the Board of Directors
of Barrister or its designee ("the Board of Directors"), and agrees to abide by
all By-laws, policies, practices, procedures or rules of Barrister. Employee may
be reassigned or transferred to another management position, as designated by
the Board of Directors of Barrister, which may or may not provide the same level
of responsibility as the initial assignment, in accordance with the terms and
conditions of this Agreement. Employee agrees, as an executive, that during the
term of this Agreement, he shall devote his full business time and attention
exclusively to the business and affairs of Barrister, and shall use his best
efforts, skills, and ability to promote the business of Barrister and perform
for Barrister such duties as are customarily performed by a management or
executive employee having responsibility in such areas, and will accept and
perform hereunder such other duties as may be assigned him by the Board of
Directors of Barrister. Employee shall have such power and authority as shall
reasonably be required to enable him to perform his duties hereunder in an
efficient manner; provided that in the exercising of such power and authority
and the performance of such duties, he shall at all times be subject to the
supervision and direction of the Board of Directors of Barrister.
The Board of Directors shall have the right, from time to
time, to assign to the Employee additional duties and responsibilities and to
delegate to other employees of Barrister duties and responsibilities normally
discharged by the Employee. All such assignments and delegations of duties and
responsibilities shall be made in good faith and shall not materially affect the
general executive character of the work to be performed by the Employee.
Employee shall immediately stand for election to the Board of
Directors of Barrister and agrees to stand for election each year during his
Employment Term and serve as a Director of Barrister if duly elected. However,
in the event Employee's employment with Barrister is terminated, for any reason,
Employee agrees to resign from the Board of Directors forthwith after
termination.
Notwithstanding anything to the contrary contained in this
Agreement, the Parties agree to renegotiate in good faith the terms of this
Agreement should any of the following events occur:
(a) The sale of substantially all of Barrister's assets
to a single purchaser or group of associated purchasers; or
(b) The sale, exchange or other disposition, in one
transaction of the majority of Barrister's outstanding shares; or
(c) The merger or consolidation of Barrister with another
company.
Nevertheless, this Agreement shall remain in effect, unless terminated pursuant
to the terms herein, while such renegotiation is pending.
3. Remuneration.
(a) During the Employment Term, the Employee will be paid a salary
of $250,000 per annum or at such rate as may be fixed from time to time by the
Board of Directors of Barrister (the "Base Salary"), which shall be payable in
approximately equal installments at such intervals as Barrister pays
the salaries of its executive employees. Barrister shall deduct or withhold from
such payments, and from all other payments made to the Employee pursuant to this
Agreement, all amounts which may be permitted or required to be deducted or
withheld under any applicable law now in effect or which may become effective
during the term of this Agreement (including but not limited to Social Security
contributions and income tax withholdings.) Employee will also be eligible for
additional compensation in accordance with an annual incentive compensation plan
for the Employee as determined by the Board of Directors at its sole discretion
provided, however, that the failure of Barrister to award any such bonus and/or
other incentive compensation shall not give rise to any claim against Barrister.
Employee performance will be reviewed annually on or about April 1st, starting
on April 1, 2003, along with Employee's compensation. The Employee's position,
Base Salary and incentive compensation plan for each of Barrister's fiscal years
within the period of employment shall be based upon Barrister achieving annual
business and financial objectives which shall be determined by the Board of
Directors at its sole discretion, however, any increase in compensation shall be
limited by and subject to any applicable wage control regulations or guidelines
promulgated by the United States Government and made applicable to Barrister.
(b) It is understood that temporary disability (of ninety (90)
days or less in duration) will not result in termination of Employee's
employment, during which period of time Barrister's short-term disability policy
will apply. After ninety (90) days of disability, Barrister's long term
disability policy will apply. The Employee will contribute to Barrister's long
term disability policy in accordance with company policy. In the event Employee
suffers a long term disability, Barrister will cover the difference, if any,
between Employee's Base Salary, net of taxes, and long term disability payments,
for a period of one year.
(c) Employee will be entitled to reimbursement for all reasonable
travel and other business expenses incurred by him and approved by Barrister, in
accordance with Company policy. Employee will be included in any group life
insurance, medical insurance, pension and profit-sharing plans, health care
expense reimbursement and other employee benefit programs which Barrister may
have in force from time to time for its personnel.
(d) Employee shall be entitled to four (4) weeks vacation each
year, which shall be used as defined by existing corporate policy, except that
Employee will be entitled to take vacation during the first year of employment.
4. Death and Insurance Benefits.
(a) Life Insurance. Barrister sponsored Group Life Insurance
premiums and accidental and dismemberment premiums are paid by Barrister. The
Employee shall receive said Group Life Insurance Coverage equal to twice his
annual Base Salary, rounded up to the nearest $100, to a maximum of $500,000.
Employee agrees to be responsible for any income tax consequences that he may
incur as a result of receipt of this benefit.
(b) Accidental Death and Dismemberment Insurance. The plan covers
the Employee who has an accident either at work or away from work, and as a
result of the accident, suffers loss of life, limb or vision. The benefit
payments vary based upon the loss incurred. Employee agrees to be responsible
for any income tax consequences that he may incur as a result of receipt of this
benefit.
5. Termination of Employment Due to Illness or Disability.
(a) In the event of the permanent disability of Employee
rendering him unable to perform the essential functions of his position, with or
without reasonable accommodation, for a period likely to exceed six (6)
consecutive months or for an aggregate of nine (9) months during any twelve (12)
month period as determined by a physician selected by Barrister, Barrister
shall have the right to terminate this Agreement upon giving not less than ten
(10) days advance written notice, given after such period, of its intention to
terminate Employee as of the date set forth in the notice. In the event a
question arises hereunder as to the Employee's capacity to perform his regular
duties, Barrister may request the Employee to provide medical documentation
indicating his ability to do so. The Employee may be examined by a physician
selected by Barrister and such physician's determination shall be final and
conclusive and binding on all Parties for the purposes hereof. Upon termination
of Employee's employment because such disability, Employee shall be entitled to
receive salary benefits and reimbursable expenses owing to Employee through the
date of termination. In addition, Barrister shall pay to Employee in each of the
first twelve (12) months following the effective date of such termination, a
monthly termination payment equal to one twelfth (1/12) of his Base Salary in
effect at the time of such termination less any amounts Employee receives as
long term disability payments. Barrister shall have no further financial or
other obligation to Employee.
(b) In the event of Employee's death after such
termination on account of such illness or disability, but before Barrister has
made all of the payments to which he became entitled as provided for above,
Barrister shall make such payments to the Employee's designated beneficiary; or,
if the designated beneficiary is not alive at the time of the making of any of
such payments, the payments shall be made in equal shares to such of the
children of the Employee as shall be surviving at the time of each of such
payments; or, if the Employee has no surviving designated beneficiary or
children at the
time of the making of any such payments, then a lump sum payment shall be made
to the Employee's estate in accordance with Section 8 of this Agreement.
6. Termination. If Employee's employment with Barrister is
terminated for any reason, other than as set forth in sub-paragraph (c) below,
Employee's obligations under Paragraphs 7, 8, 9, 10 and 20 shall survive and
continue pursuant to the terms and conditions of this Agreement.
(a) Termination of Employment by Barrister. Barrister
may, in its sole discretion, terminate Employee's employment at any time, upon
giving at least thirty (30) days advance written notice to the Employee of the
date when such termination shall become effective. However, if the Employee's
employment is terminated by Barrister for Cause (as defined below) prior to the
expiration of the Employment Term, no prior written notice shall be required and
Barrister shall pay the Employee any compensation or benefits due under this
Agreement only to the date of such termination. Cause shall mean the Employee's
breach of any provision of this Agreement, material violations of Barrister's
corporate policies, intemperate use of alcohol or unlawful drugs or misuse of
prescription drugs while engaged in Barrister business, conviction of a felony,
conviction of any other crime involving the affairs or interests of the Company,
gross violation of any duty or obligation to the Company, or substantial
evidence of dishonesty in relation to the property, funds or affairs of the
Company or any other employee thereof or any person dealing therewith.
If the Employee's employment is terminated for any reason
other than Cause (as defined herein), including termination of employment by
Employee as set forth in subparagraph (b) below, prior to the expiration of the
Employment Term, or this Agreement expires by its terms, Barrister shall pay
Employee the equivalent of twelve (12) months of Employee's Base Salary, payable
in approximated equal installments at such intervals as Barrister pays the
salaries of its executive employees, if, and only if, Employee agrees not to
compete against Barrister, in accordance with Section 7 and Exhibit A herein,
and Employee signs a valid general release and waiver of all claims against
Barrister in a form provided by Barrister. Said payments shall be additional
consideration, over and above what may be stated elsewhere in this Agreement,
for said agreement not to compete and waiver. Any accrued or event-based
incentives due Employee to the date of termination shall be paid to Employee in
accordance with Barrister's usual practices for the same.
If Employee's employment is terminated for Cause (as defined
herein) prior to the expiration of the Employment Term, the agreement not to
compete pursuant to Section 7 and Exhibit A shall still apply and Employee
agrees to be bound thereby. Notwithstanding the foregoing, Barrister may, at its
option and in its sole discretion, pay the equivalent of twelve (12) months of
Employee's Base Salary under the same
terms and conditions as stated in the preceding paragraph. Barrister shall be
the sole judge as to whether termination is for Cause or not. Barrister's
decision may only be reviewed by a court of competent jurisdiction, in
accordance with the terms stated herein, to determine whether the decision was
arbitrary and capricious.
In the event of Employee's death after such termination, but
before Barrister has made all of the payments to which he became entitled as
provided for above, Barrister shall make such payments in accordance with
Section 8 of this Agreement.
(b) Termination of Employment by Employee.
Employee may terminate this Agreement without cause upon
thirty (30) days written notice. If, for any reason, Employee terminates this
Agreement within the first twelve (12) months of this Agreement, the Employee
shall reimburse Barrister for all costs of relocation incurred by Barrister
pursuant to Barrister's Relocation Policy. If, for any reason, Employee
terminates this Agreement prior to repaying in full any amounts due Barrister,
under any Loan Agreements between Barrister and the Employee or otherwise,
Employee agrees that any outstanding principal balance payments and any accrued
interest shall be accelerated and shall be repaid in full within 30 days of
termination. Barrister shall have a right of set off against any amounts due the
Employee by Barrister for any amounts not paid by the Employee pursuant to the
terms hereof.
(c) Termination by Death.
The Employment Term shall terminate on the date of Employee's
death, in which event Employee's salary and benefits owing to Employee through
the date of Employee's death shall be paid to his estate in accordance with
Section 8 of this Agreement. Upon termination of employment on account of
Employee's death, Barrister shall pay to his estate, in accordance with Section
8 of this Agreement, in each of the first 12 months following the month in which
his death occurs, an amount equal to one twelfth (1/12) of his Base Salary in
effect at the time of death. In the event this Agreement is terminated on
account of Employee's death, prior to Employee repaying in full any amounts due
Barrister, under any Loan Agreements between Barrister and the Employee or
otherwise, Employee agrees that any outstanding principal balance payments and
any accrued interest shall be accelerated and shall be repaid in full within 30
days of termination. Barrister shall have a right of set off against any amounts
due the Employee, or his Estate in accordance with this paragraph, by Barrister
for any amounts not paid by the Employee pursuant to the terms hereof.
Employee's estate will not be entitled to any other compensation under this
Agreement.
(d) Change of Duties.
A change in Employee's duties or responsibilities, as provided
in Section 2 above, shall not be considered a termination
under this Section 6.
7. Proprietary Information, Non-Competition, Non-Solicitation and
Non-Interference. It is understood and agreed that as a condition of his
employment by Barrister under this Agreement, the Employee shall be bound by the
Employee Inventions, Works of Authorship, Proprietary Rights and Non-Competition
Agreement executed simultaneously herewith between the parties, which agreement
shall be made a part hereof as Exhibit A to the same extent as if the text of
the Exhibit had been fully set forth in the body of this Agreement, except for
Sections 15.00 and 15.01 of said exhibit agreement. Employee acknowledges he has
read, understands and agrees to abide by the terms including the covenant not to
compete contained in Section 12.00 of said Exhibit A and that the employment
with Barrister under this Agreement is satisfactory and adequate consideration
for his agreement to comply with all of the provisions in Exhibit A. The
provisions of this Agreement shall control over any inconsistent provisions in
Exhibit A.
8. Designation of Beneficiary; Lump Sum Payments. A designated
beneficiary entitled to receive the benefits payable following the death of the
Employee after termination of employment under Sections 5 or 6, shall be named
in a written designation filed with the Secretary of Barrister. Such written
designation may be revoked or amended by Employee at any time. If no such
written designation of beneficiary shall be filed with the Secretary of
Barrister, or if the designated beneficiary is not alive at the time of any
payment to be made, the same shall be paid in equal shares to such of the
children of the Employee as shall be surviving at the time of such payment. If
the Employee has no surviving designated beneficiary or children at the time of
any payment to be made under Sections 5 or 6 of this Agreement, then the value,
commuted (reduced) on the basis of 7% interest compounded annually, of the
monthly payments due under such Section 5 or 6 shall be paid to Employee's
estate in a lump sum in cash. In determining the eligibility and status of
persons entitled to receive payments under Section 5 or 6 of this Agreement,
Barrister may rely on its records and the good faith determinations of its
officers. In no event shall Barrister be liable to any person for any sums paid
to any other persons pursuant to such records and determinations.
9. Representations and Warranties of Employee. Employee hereby
represents and warrants to Barrister as follows: (i) Employee has the legal
capacity and unrestricted right to execute and deliver this Agreement and to
perform all of his obligations hereunder; (ii) the execution and delivery of
this Agreement by Employee and the performance of his obligations hereunder will
not violate or be in conflict with any fiduciary or other duty, instrument,
agreement, document, arrangement or other understanding to which Employee is a
party or by which he is or may be bound or subject; (iii) Employee
is not a party to any instrument, agreement, document, arrangement or other
understanding with any person (other than Barrister) requiring or restricting
the use or disclosure of any confidential information or the provision of any
employment, consulting or other services; and (iv) Employee has fully disclosed
all, and has not omitted any, material information concerning Employee's
character and background information with the understanding that the Board of
Directors is explicitly relying upon said representation. Employee hereby agrees
to indemnify and hold Barrister harmless from and against any and all damages,
claims, costs and expenses, including reasonable attorneys' fees incurred in
defending or opposing a claim, based on or arising, directly or indirectly, from
the breach of any agreement or understanding between the Employee and another
person or entity or relating to the representations or warranties contained
within this paragraph.
10. Post Employment Obligations
(a) Company Property.
All records, files, lists, including computer generated lists,
data, information or materials, drawings, documents, equipment and similar items
relating to Barrister's business which Employee shall prepare or receive from
Barrister shall remain Barrister's sole and exclusive property. Upon termination
of this Agreement, Employee shall promptly return to Barrister all property of
Barrister in his possession. Employee further represents that he will not copy
or cause to be copied, print out or cause to be printed out any software,
documents or other materials originating with or belonging to Barrister.
Employee additionally represents that, upon termination of his employment with
Barrister, he will not retain in his possession any such software, documents or
other materials.
(b) Cooperation.
Employee agrees that both during and after his employment he
shall, at the request of Barrister, render all assistance and perform all lawful
acts that Barrister considers necessary or advisable in connection with any
litigation involving Barrister or any director, officer, employee, shareholder,
agent, representative, consultant, client or vendor of Barrister.
11. Assignments. Neither Employee nor any beneficiary designated
to receive payments under this Agreement shall have any power to transfer,
assign, anticipate, mortgage or otherwise encumber in advance any of the
remuneration or other benefits payable hereunder, nor shall such remuneration or
other benefits be subject to seizure for the payment of any debts or judgments
or any of them or be transferable by operation in law in the event of
bankruptcy, insolvency or otherwise.
12. Participation in Other Plans. Nothing in this Agreement shall
affect any right which Employee may otherwise have to participate in, or under
any other retirement plan or agreement which Barrister may now or hereafter
provide.
13. Binding Agreement. This Agreement shall be binding upon the
Parties hereto, their heirs, executors, administrators or successors.
14. Revocation. This Agreement may be amended or revoked at any
time only by mutual written agreement of the Parties.
15. Cumulative Remedies. Any of the remedies provided for herein
shall be in addition to any remedy available to either of the Parties at law or
equity.
16. Savings Clause Whenever possible, each provision of the
Agreement shall be interpreted in such a manner as to be enforceable under
applicable law. However, if any provision of this Agreement shall be deemed
unenforceable under applicable law by a court having jurisdiction, such
provision shall be unenforceable only to the extent necessary to make it
enforceable without invalidating any of the remaining provisions of this
Agreement. Without limiting the foregoing, the Employee acknowledges and agrees
that, if any part of the covenants contained in Paragraphs 7, 10 and in Exhibit
A, attached, are deemed to be overbroad or void as against public policy, such
invalid portion shall be severable from such covenants and, upon such event, the
Employee requests that such covenant be reformed ("blue pencilled") to permit
Barrister to obtain the maximum permissible benefit from such covenants.
17. Waiver. Any waiver or consent from Barrister with respect to
any term or provision of this Agreement or any other aspect of Employee's
conduct or employment shall be effective only in the specific instance and for
the specific purpose for which given and shall not be deemed, regardless of
frequency given, to be a further or continuing waiver or consent. The failure or
delay of Barrister at any time or times to require performance of, or to
exercise any of its powers, rights or remedies with respect to any term or
provision of this Agreement or any other aspect of Employee's conduct or
employment in no manner (except as otherwise expressly provided herein) shall
affect Barrister's right at a later time to enforce any such term or provision.
18. Notices. All notices, requests, demands and other
communications hereunder must be in writing and shall be deemed to have been
duly given if delivered by hand or mailed within the continental
United States by first class, registered mail, return receipt requested, postage
and registry fees prepaid, to the applicable party and addressed as follows:
(a) Barrister:
Barrister Global Services Network, Inc.
Attn.: Secretary and General Counsel
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(b) Employee:
Xxxxxxx X. Xxxx
0 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxxxx, XX 00000
Addresses may be changed by notice in writing signed by the
addressee.
19. New York Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York, except for its
principles of conflict of laws.
20. Equitable Relief. Each party acknowledges that any breach or
attempted of threatened breach of this Agreement, and in particular, of Section
7 of this Agreement, by Employee may result in immediate and irreparable damage
to Barrister, and that in the event of such breach or attempted or threatened
breach Barrister shall have, in addition to any and all remedies of law, the
right to seek an injunction without bond, specific performance or other
equitable relief to prevent the violation of Employee's obligations hereunder.
21. Venue. Any litigation, shall, at the option of Barrister, be
venued in the courts sitting in Erie County, New York. Employee agrees such
venue is proper and hereby consents to the personal jurisdiction of such courts.
22. Entire Agreement. This Agreement constitutes the entire
agreement between the parties as to the subject matter hereof. No party shall be
bound by any condition, definition, warranty or representation, other than as
expressly set forth or provided for in this Agreement, or as may be, on or
subsequent to the date hereof, set forth in writing and signed by the party to
be bound thereby.
IN WITNESS WHEREOF, Employee has hereunto set his hand and seal, and
Barrister has caused these presents to be executed by its Chairman of the Board
of Directors the day and year first above written.
/s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx
BARRISTER GLOBAL SERVICES NETWORK, INC.
By /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxxxx
Chairman of the Board of Directors
STATE OF ILLINOIS
COUNTY OF _________
On the ________ day of _________________, in the year 2001, before me,
the undersigned, personally appeared _________________________________________,
personally known to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their capacity
(ies), and that by his/her/their signature(s) on the instrument, on the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
_________________________________
Notary Public
STATE OF NEW YORK
COUNTY OF ERIE
On the ________ day of _________________, in the year 2001, before me,
the undersigned, personally appeared _________________________________________,
personally known to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their capacity
(ies), and that by his/her/their signature(s) on the instrument, on the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
_________________________________
Notary Public
