BARRISTER GLOBAL SERVICES NETWORK, INC.
EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT, executed as of the 15th day of July, 2002, by and
between Xxxx X. Xxxxxx, III (hereinafter called "Employee") residing at 0000 0xx
Xxxxxx, Xxxxxxxx, Xxxxxxxxx 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:
3. Term of Employment. Barrister hereby employs Employee and
Employee agrees to work for Barrister for a period beginning July 15, 2002 and
ending July 31, 2004 ("Employment Term"), which shall expire at the close of
business on July 31, 2004, unless extended in writing by both Barrister and
Employee or earlier terminated pursuant to the terms and conditions set forth in
this Agreement.
Duties and Responsibilities. Employee shall perform all duties incident
to the position of President of the Barrister Advantage Services Division and
Vice President of Barrister, and agrees to abide by all By-laws, policies,
practices, procedures or rules of Barrister. 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 the Barrister Advantage
Services Division, and shall use his best efforts, skills, and ability to
promote the business of the Barrister Advantage Services Division and perform
for the Barrister Advantage Services Division such duties as are customarily
performed by a management or executive employee having responsibility in such
areas. 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 President and Chief Executive Officer and/or the Board of
Directors of Barrister. Notwithstanding the foregoing, Employee alone shall be
responsible for managing the day-to-day business and affairs of the Barrister
Advantage Services Division, in compliance with legal requirements and Barrister
company policy, and he shall have no other significant responsibilities. He
shall have the authority to approve all ordinary business expenses of the
Barrister Advantage Services Division up to $10,000 per expense. He shall have
sole authority with respect to the employment, termination of employment and
compensation and benefits of the individuals who are employees of the Barrister
Advantage Services Division. However, should the Barrister Advantage Services
Division realize two (2) consecutive quarters of losses, the President and Chief
Executive Officer and/or the Board of Directors of Barrister may take any action
it reasonably deems appropriate to improve the Barrister Advantage Services
Division's results without violating any terms of the Stock Purchase Agreement
or this Agreement.
3. Remuneration.
(a) During the Employment Term, the Employee will be paid a salary
of $128,400 per annum (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 are 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. The Employee's 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 (excluding expenses associated with
Employee's personal vehicle) incurred by him and in performance of his duties
under this Agreement, upon presentation of such supporting documents and forms
as Barrister may reasonably request and 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.
5. 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 exceeding 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 and reasonably
acceptable to Employee or his legal representative, 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
reasonably acceptable to Employee or his legal representative 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 of 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 under this Agreement. Notwithstanding anything herein to
the contrary, Employee shall not be considered to be permanently disabled unless
he qualifies for long-term disability payments under Barrister's long-term
disability policy.
(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.
7. 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 material provision of this Agreement (if not cured within 10 days
of notice), failure to generate a profit for the Barrister Advantage Services
Division for two (2) consecutive quarters, material violations of Barrister's
corporate policies (if not cured within 10 days of notice), 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 Employee is terminated without Cause, Barrister shall nevertheless
continue to pay Employee's salary and provide Employee benefits as if he
remained employed through July 31, 2004. 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.
(e) Termination of Employment by Employee.
Employee may terminate this Agreement without Good Reason upon
thirty (30) days written notice. 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. In addition, if
Employee terminates this Agreement without Good Reason, Barrister shall
pay the Employee any compensation or benefits due under this Agreement
only to the date of such termination.
Employee may terminate this Agreement with Good Reason. As
used herein, "Good Reason" shall mean any breach by Barrister of this
Agreement that continues for a period of 30 days after written notice
thereof is given by Employee to Barrister or Barrister's requiring
Employee to be based anywhere other than in the New Orleans, Louisiana
metropolitan area. If Employee terminates his employment for Good
Reason, Barrister shall nevertheless continue to pay Employee's salary
and provide Employee benefits as if he remained employed through July
31, 2004.
(f) 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. Employee's estate will not be entitled to any other
compensation under this Agreement.
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
(c) 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, except as may be
otherwise provided in Section 2.6 of the Stock Purchase Agreement by and among
Barrister, Advantage Innovation, Inc, and the Shareholders of Advantage
Innovation, Inc. dated July 15, 2002. 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 except
as may be otherwise provided in Section 2.6 of the Stock Purchase Agreement by
and among Barrister, Advantage Innovation, Inc., and the Shareholders of
Advantage Innovation, Inc. dated July 15, 2002.
(d) Cooperation.
Employee agrees that both during and after his employment he
shall, at the request of Barrister, render all reasonable 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;
provided that Barrister shall reimburse Employee for his reasonable expenses
incurred in connection therewith.
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 penciled") 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.
19. 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:
(c) Barrister:
Barrister Global Services Network, Inc.
Attn.: Secretary and General Counsel
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(d) Employee:
Xxxx X. Xxxxxx, III
0000 0xx Xxxxxx
Xxxxxxxx, 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 or 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 Barrister
has caused these presents to be executed by its President and Chief Executive
Officer on the day and year first above written.
/s/ Xxxx X Xxxxxx, III
-----------------------
Xxxx X. Xxxxxx, III
BARRISTER GLOBAL SERVICES NETWORK, INC.
By /s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx
President and Chief Executive Officer
STATE OF LOUISIANA
PARISH OF ORLEANS
On the ________ day of _________________, in the year 2002, 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
XXXXX XX XXXXXXXXX
XXXXXX XX XXXXXXX
Xx the ________ day of _________________, in the year 2002, 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
